Hamden v Campbell

REASONS FOR JUDGMENT 1 This is an application pursuant to r 20.21 of the Federal Court Rules 2011 (Rules) for particular discovery. This proceeding was commenced by an unrepresented applicant who seeks an order in the nature of mandamus directed to the Commonwealth to comply with a direction given by the Administrative Appeals Tribunal (AAT) in relation to a particular document which was the subject of a proceeding before the AAT. 2 The AAT directed the Commonwealth, through Centrelink, to take steps to determine whether a Word document - which need not be described - that was superseded within Centrelink, can be found, or whether, like the email to which the particular document was attached, it has been purged from the email recipient's inbox and from the backup server and no longer exists. The applicant, Mr Hamden, contends that Centrelink, and more specifically the respondent, who is the Secretary of the Commonwealth Department that administers Centrelink, has not done what it was directed to do by the AAT, and has not conducted a proper search for the document. 3 Mr Hamden has issued subpoenas in the proceeding attempting to locate the document which is the subject matter of the proceeding itself. In order to try to bring the matter to a head, on 20 December 2011 I made an order that the parties give discovery in accordance with the Rules. The respondent responded in accordance with the direction and filed a list of documents on 17 January 2012. The respondent filed a further list of documents on 23 January 2012, not for the purpose of identifying further documents, but for the purpose of explaining when a particular document had last been in the control of the respondent. 4 The effect of the respondent's discovery is that the document, which Mr Hamden claims to be in the possession of the respondent, has not been discovered. As a consequence, he issued a further subpoena, effectively seeking the document which had not been discovered. On the return of that subpoena, the respondent argued that the subpoena was onerous and oppressive, and I relieved the respondent from the consequences of compliance with the subpoena, except insofar as it had been complied with. 5 Therefore, the subpoena did not give rise to the production of the document which is the subject matter of the proceeding. 6 Mr Hamden then made this application under r 20.21 of the Rules for particular discovery, claiming that the document must be in the respondent's possession because of the provisions of the Archives Act 1983 (Cth) (Act). Speaking generally, that Act requires that Commonwealth records be retained for archival purposes. Mr Hamden, in an affidavit, directed me to s 24 of the Act, which makes it an offence to destroy or otherwise dispose of a Commonwealth record. 7 In those circumstances Mr Hamden submitted that the document, which was once in the control of the respondent, must still be in the respondent's possession. However, s 24(2)(c) provides that the obligation not to destroy or otherwise dispose of Commonwealth records does not apply to anything done in accordance with normal administrative practice. 8 In response to the application for further and better discovery, the respondent filed an affidavit of Cabrini Shepherd, a solicitor employed by the Australian Government Solicitor, who exhibited a letter from Margaret Scanlon, the authorised Freedom of Information officer within Centrelink, to Mr Hamden. It was Ms Scanlon who had made the original search for the document following the AAT ruling. 9 In the letter, which was dated 2 February 2012, Ms Scanlon wrote: As I previously stated in my earlier letters, I have conducted all reasonable searches for the original ("superseded") version of the document in question and I can confirm that the digital record of the document (i.e. the electronic form of the document) has ceased to exist on the Centrelink computer system, including the backup server. In conducting these searches, I have obtained assistance as required from relevant Centrelink staff with specialist knowledge of the Centrelink computer system. I have also confirmed that the "superseded" version of the document in question was not saved, copied or otherwise placed onto any other electronic media separate from or outside of the Centrelink computer system. In other words, the document in question was not saved, copied or otherwise placed onto any floppy disk, magnetic tapes, CD-ROM, DVD, USB memory stick or any other form of electronic media. I can also confirm, as I have previously indicated, that the original ("superseded") version of the document in question was not printed or otherwise produced in hard copy form and so it also does not exist in that form. 10 This application seeks discovery of a digital copy of the superseded attachment. The purpose of r 20.21 is to allow a party who claims that insufficient discovery has been made, whether pursuant to r 20.14 or r 20.15, to approach the court to obtain what is sometimes called in other courts further and better discovery. Any party approaching the court under r 20.21 must be able to satisfy the court that the document which is sought under r 20.21 is likely to exist and that it is likely to be in the other party's control. 11 In this case I am not satisfied that Mr Hamden has established that the disk either exists or that it is in Centrelink's or the respondent's control. In those circumstances I dismiss the application for particular discovery under r 20.21. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.