IAN DUNCAN v SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Factual and Procedural Background 3 On 12 June 2003 Ian Duncan, a former Centrelink employee, wrote to the Freedom of Information Officer at the Centrelink Compliance Office in Perth. His letter was an application for amendment to personal information held in Centrelink. The information was said to be contained in an email from a Centrelink Officer Mrs E. Greif to Edith Cleary another Centrelink Officer. The email was dated 26 April 2002. 4 The email sent by Mrs Greif was in the following terms:- I have spoken to Simon Gregor in the Ministerial Liaison team, NSO, and he has faxed to me a request for amendment from a Mr Ian Duncan. Mr Duncan has had all his papers under FOI, in the past. Mr Duncan was employed by Centrelink (ex DEETYA) and was retired due to inefficiency. He has appealed to every appeal board available, and has been on the whole unsuccessful. I have sent him, over a period of years, a substantial amount of paper under FOI, and he has appealed to the AAT for various FOI decisions. Mr Duncan is no longer employed by us. Mr Duncan is not currently receiving any Centrelink benefit. The documents he wants annotated are located on FOI files and on personnel files. It is my opinion that Mr Duncan, having failed through appeal processes to change his situation, is trying to generate unproductive case work for Centrelink, particularly FOI. Mr Duncans request for annotation will take up a lot of my time, and I am not sure that it is in the public interest for me to spend time on his case when I could be working on cases where there is a genuine need for FOI. It will make it difficult to process other requests within the 30 day time restriction. I believe you spoke to Simon, regarding the use of section 24.1, Substantial and unreasonable diversion. Is this a case where the use of this Section may be appropriate? I would really appreciate your help on this one! 5 In his request Mr Duncan challenged the following statements made in the email:-

1. that he has had all his papers under FOI in the past.
2. that he was employed by Centrelink (ex DEETYA) and was retired due to inefficiency.
3. that he appealed to every board available, and has been on the whole unsuccessful.
4. that the documents he wants annotated are located on the FOI files and on personnel files.
5. that, having failed through appeal processes to change his situation, he is trying to generate unproductive casework for Centrelink, particularly FOI. Mr Duncan said that each of the challenged statements was 'without basis in fact whatsoever'. 6 On 6 April 2003 Mrs Greif responded by letter to Mr Duncan and said:- I have reread the document, and it is an e-mail to Edith Clear in NSO from me. I was seeking her professional opinion. The statements I made in the e-mail where to give, what I believed, a quick round up of events up to that date. (sic) I did not attempt to relay to Ms Cleary every minute detail involved in the case, as this was not appropriate. The e-mail I sent to Ms Cleary reflects my view of the events at the time. You may not agree with any of the statements in my e-mail, however it would be inappropriate to amend the e-mail because it would not change the opinion held at the time by me. You want me to add the words "This statement is without basis in fact whatsoever". Your request is refused. Your appeal rights are attached, as is a request for internal review. I would like to offer you the opportunity to annotate your file, whereby your opinion in each case could be stapled to each original folio listed above. 7 Mr Duncan then sought internal administrative review of Mrs Greif's decision. On 3 October a FOI Review Officer Colin Oakley wrote to him in the following terms:- Mrs Greif's decision was not to grant you an amendment to statements made in her e.mail to another Centrelink officer dated 26 April 2002 I have now considered the matter and made a fresh decision. I have decided to uphold the original decision, not to amend details in that e.mail. It is noted that Mrs Greif offered to have this document annotated by you and this option is still open to you. I have decided not to charge you for this review, and am accordingly returning your cheque. Mr Oakley advised Mr Duncan that one of the options open to him was to appeal to the Administrative Appeals Tribunal. 8 On 3 November 2003 Mr Duncan filed an application under the Administrative Decisions (Judicial Review) Act 1977 ('ADJR Act') for judicial review of Mr Oakley's decision in the Federal Magistrates Court. He claimed by way of relief a declaration: 'that each of the respondents statements of personal information is without basis in fact whatsoever, and that knowingly referring these statements to the Tribunal as 'relevant' documents in accordance with s.37(1)(b) of the AAT Act was an attempt to pervert the course of justice in respect of application W2002/409 before the tribunal". 9 Mr Duncan's application for judicial review was dismissed by McInnis FM on 12 November 2004 on an application by the Secretary of the Department of Family and Community Services for summary dismissal - Duncan v Secretary, Department of Family and Community Services [2004] FMCA 800. It may be noted that, when the matter came on for hearing before McInnis FM, there were appeals pending in the Federal Court from other decisions of the Federal Magistrates Court relevant to Mr Duncan. The learned Magistrate awaited the outcome of those matters before delivering judgment on the summary application. The judgments for which he waited were that of Nicholson J in Duncan v Hotop [2004] FCA 274 delivered 22 March 2004; and my judgments in Duncan v Fayle [2004] FCA 723 and Duncan v Administrative Appeals Tribunal (No 2) [2004] FCA 1258. The latter judgment was delivered on 28 September 2004 having been heard in August 2004. 10 The Magistrate's decision turned on the question whether there was "adequate provision" made in the Administrative Appeals Tribunal Act 1975 ('the AAT Act') for review of the determination of the review officer such that the Court should decline to hear the judicial review application as a matter of discretion - Section 10(2)(b)(ii) of the ADJR Act. His Honour followed the approach, which he said had been adopted in the decision of the Federal Magistrates Court in Duncan v Hotop [2004] FCA 274 and upheld by Nicholson J on 22 March 2004. The Magistrate said that there was "…an appropriate avenue of appeal arising from ss 62(2) and/or section 55(3) of the FOI Act, both of which I am satisfied provide adequate provision under which the applicant is entitled to seek review by the AAT and ultimately judicial review of any AAT decision pursuant to s.44 of the AAT Act". Mr Duncan's aversion to proceedings before the AAT was not in itself a sufficient basis upon which the Court would exercise its discretion in his favour and against the submissions made on behalf of the respondent. 11 In Duncan v Hotop [2004] FCA 274 Nicholson J dismissed an application by Mr Duncan for an extension of time to appeal against an earlier summary dismissal decision made by McInnis J. That decision was made in proceedings relating, like these, to an attempt to have Centrelink documents amended on the basis that they contained incorrect personal information about Mr Duncan. Mr Duncan sought judicial review under the ADJR Act of a decision of the Administrative Appeals Tribunal ("AAT") adverse to him. His application was summarily dismissed in reliance upon section 10 of the ADJR Act on the basis that the proper avenue for relief was section 44 of the AAT Act. Nicholson J regarded the decision of the magistrate as one involving the exercise of a discretion and a matter of practice and procedure. There was no error demonstrated in the exercise of that discretion and so the application for extension of time was dismissed. 12 In Duncan v Fayle [2004] FCA 723 Mr Duncan appealed against a decision of the Federal Magistrates Court upholding a Registrar's decision to refuse to accept his application for judicial review of an AAT decision under the ADJR Act. The application was rejected by the Federal Magistrates Court on the basis that it was frivolous and vexatious. I allowed Mr Duncan's appeal against that decision on the basis that an application under the ADJR Act could not be treated as frivolous and vexatious merely because of the existence of an alternative remedy under section 44 of the AAT Act. The power to decline relief under section 10 of the ADJR Act is discretionary. It is not fettered by a principle that where there is an adequate alternative remedy, relief under the ADJR Act will always be refused. 13 Mr Duncan filed a notice of appeal against the decision of McInnis FM on 3 December 2004. On 28 January 2005 he wrote to the Court seeking a referral under Order 80 of the Federal Court Rules for pro bono legal assistance. He attached reasons for his appeal referring to the Reasons for Judgment. There was a delay in dealing with this request however on 21 October 2005 a certificate was signed under Order 80 of the Federal Court Rules referring him for legal assistance. On the same date a recommendation was made to the Chief Justice that the matter be dealt with by a single judge. The Chief Justice so determined under section 25(1A) of the Federal Court of Australia Act 1976 (Cth). 14 Mr Duncan was advised of the referral for pro bono assistance on 26 October 2005. Counsel was found under Order 80 who was prepared to assist him on a pro bono basis. The documents were forwarded to counsel in November 2005. Inquiries were made of counsel in March 2006 about the situation with respect to the appeal. Counsel advised that she was in the process of drafting written advice to Mr Duncan. Nothing further was heard for some months and ultimately on 7 December 2006 the matter was listed for directions on 30 January 2007. I made directions on 30 January 2007, when Mr Duncan appeared in person, that he should file and serve any written submissions in support of the proposed appeal by 27 February 2007. The Secretary was to file and serve any submissions in reply by 20 March 2007. Any submissions in reply to those of the Secretary were to be filed by 27 March 2007. Mr Duncan agreed that the matter could be dealt with on the papers. He was given the option of not proceeding on the basis that if written submissions were not filed by 27 February 2007 the appeal would stand dismissed with costs. 15 Mr Duncan filed his written submissions on 16 February 2007. The Secretary filed submissions in reply on 23 March 2007 and Mr Duncan filed further submissions in reply to those of the Secretary. He also filed a proposed amended notice of appeal on 16 February 2007. 16 At para 7 of his written submissions Mr Duncan states that the Centrelink email sent by Mrs Greif to Ms Cleary has now been endorsed with a "correction". In his submissions he says:- The appellant achieved this correction on 21 July 2006 with Centrelink's amendment and annotation of the document [p 14] pursuant to a subsequent interstate internal review of a second refusal by Ms Greif to correct the facts in her email. This correction which considerably post-dates the commencement of these proceedings is referred to in the submissions filed on behalf of the Secretary in support of the proposition that the appeal is an abuse of process. 17 A copy of the email as amended is attached to the Secretary's submissions. The words "due to inefficiency" which appear in the second paragraph of the email have been ruled through and that paragraph headed "AMENDED UNDER FOI: TO BE DISREGARDED". It is then signed by an FOI Review Officer and the signature is dated 21 July 2006. In addition, there is an annotation under FOI placed on the email by the review officer on 21 July 2006 which reads:- The Sentence 'Mr Duncan …was retired due to inefficiency' is to be read in conjunction with the following statement provided by Mr Duncan: "This statement is without basis in fact whatsoever and is a bona fide fantasy of the author". Whether Leave to Appeal Should Be Granted 18 The Secretary contends correctly that the appeal requires the leave of the Court because the judgment appealed from is interlocutory in character being a judgment of dismissal on an application for summary judgment. Nevertheless the judgment is effectively final so far as Mr Duncan is concerned. In such a case the threshold for the grant of leave is not as high as a case in which a procedural ruling is the subject of challenge - Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42] - [44]; Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400. In a case such as the present which has the practical effect of finally determining the rights of the parties "a prima facie case exists for granting leave to appeal" - Ex parte Bucknell (1936) 56 CLR 221 at 225. On the other hand leave may be refused where an appeal would appear to achieve no useful purpose. In this case the Secretary also contends that Mr Duncan is out of time, as time has long expired for the making of an application for leave to appeal under Order 52 rule 10(2A) of the Federal Court Rules. An extension of time for making such an application and the grant of leave to appeal, he argues, should be refused on the ground that there is no utility in the proposed appeal. 19 The grounds in the proposed Amended Notice of Appeal are general and repetitious although no doubt they represent Mr Duncan's best effort as a self-represented litigant to express his case. They are supported by extensive written submissions made by him. I have had regard to his proposed grounds in considering the merits of the appeal and also the utility of the relief sought. The Grounds of the Proposed Appeal 20 In his Amended Notice of Appeal Mr Duncan sets out eight grounds which are for the most part of such a generality as not to disclose any intelligible basis for interfering with the decision of the Federal Magistrates Court. The grounds of appeal which convey useful meaning reduce to the core proposition that the learned Magistrate erred in law in finding that there was "… an appropriate avenue of appeal arising from section 62(2) and/or section 55(3) of the Freedom of Information Act 1982…". On that basis, it is said, the discretion conferred by section 10 of the ADJR Act to decline relief under that Act because of the availability of alternative remedies, was not enlivened. The Statutory Framework 21 Section 48 of the Freedom of Information Act 1982 (Cth) ('the FOI Act') provides:-
6. Application for amendment or annotation of personal records Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person: (a) that is incomplete, incorrect, out of date or misleading; and (b) that has been used, is being used or is available for use by the agency or Minister for an administrative purpose; the person may apply to the agency or Minister for: (c) an amendment; or (d) an annotation; of the record of that information kept by the agency or Minister. 22 Internal review of a decision refusing to amend a record of personal information is available pursuant to section 54(1) of the FOI Act. 54 Internal review (1) Subject to subsection (1A), where a decision has been made, in relation to a request to an agency, otherwise than by the responsible Minister or principal officer of the agency, being: … (g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or … The applicant may, by application in writing to the agency accompanied by any application fee in respect of the application, request a review of the decision. 23 Review is available in the Administrative Appeals Tribunal pursuant to section 55 of the FOI Act which provides in the relevant parts:- 55 Applications to Administrative Appeals Tribunal (1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of: … (g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or … (2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is not entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review. (3) Subsection (2) does not prevent an application to the Tribunal in respect of a decision where: (a) the person concerned has applied under section 54 for a review of the decision; (b) a period of 30 days has elapsed since the day on which that application was received by or on behalf of the agency concerned; and (c) he or she has not been informed of the result of the review; and such an application to the Tribunal may be treated by the Tribunal as having been made within the time allowed by subsection (4) if it appears to the Tribunal that there was no unreasonable delay in making the application to the Tribunal. (4) Notwithstanding section 29 of the Administrative Appeals Tribunal Act 1975, the period within which (subject to any extension granted by the Tribunal) an application under subsection (1) of this section is to be made in respect of a decision is: (a) except where paragraph (b) or (c) applies - the period commencing on the day on which notice of the decision was given to the applicant in accordance with section 26 and ending on the sixtieth day after that day; (b) where the decision is a decision that is to be deemed by subsection 56(1) or (3) to have been made - the period commencing on the day on which the decision is to be deemed to have been made and ending on the sixtieth day after that day; or (c) where subsection 57(3) is applicable - the period commencing on the day on which the Ombudsman has informed the applicant as referred to in that subsection and ending on the sixtieth day after that day. … 6. The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that: (a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or (b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or (c) the amendment relates to a record of an opinion to which neither of the following applies: (i) the opinion was based on a mistake of fact; (ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the information of the opinion. The relevant powers of the Tribunal are to be found in section 58 of the FOI Act which provides in section 58(1):- 58 Powers of Tribunal (1) Subject to this section, in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister. 24 Section 62 of the FOI Act relates to reasons for decisions and provides as follows: 62 Application of section 28 of the Administrative Appeals Tribunal Act etc. (1) Where, in relation to a decision in respect of a request, the applicant has been given a notice in writing under section 26, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to that decision. (2) If the Tribunal, upon application for a declaration under this subsection made to it by a person to whom a notice has been furnished in pursuance of subsection 26(1), considers that the notice does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Tribunal may make a declaration accordingly, and, where the Tribunal makes such a declaration, the person responsible for furnishing the notice shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, furnish to the applicant an additional notice or additional notices containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons. 25 The powers of the AAT are set out in section 43 of the AAT Act. They include the power to affirm or vary the decision under review or to set it aside and substitute another decision. The Tribunal may also remit the matter for consideration in accordance with any directions or recommendations it makes. Appeals from the Tribunal to this Court on questions of law are provided for in section 44. 26 The application the subject of this appeal was brought in the Federal Magistrates Court under the ADJR Act and dismissed summarily by reference to the discretion conferred by section 10 of the Act thus:- 10 Rights conferred by this Act to be additional to other rights (1) The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision: (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure, and (b) … (2) Notwithstanding subsection (1): (a) the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reasons that an application has been made to the Federal Court or the Federal Magistrates Court under section 5, 6 or 7 in respect of that decision, conduct or failure; and (b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. Merits and Utility of the Appeal: 27 The disposition of Mr Duncan's application in the Federal Magistrates Court was done in response to an application for summary dismissal. That is not the most appropriate vehicle for a decision under section 10 of the ADJR Act. It invites a finding that because there is an alternative remedy the discretion under section 10 of the ADJR Act will necessarily be exercised adversely to the applicant [appellant]. The question whether section 10 should be invoked to deny relief is perhaps better dealt with as a preliminary question. 28 In this case the learned Magistrate recognised that he had had a discretion. He cannot be criticised therefore on the basis that he fettered that discretion impermissibly by application of a rule that it must be exercised adversely to an applicant [appellant] who could otherwise proceed under section 44 of the AAT Act. 29 The original email was largely a piece of internal advocacy by Mrs Greif against embarking on what she regarded as a time-wasting and unnecessary exercise in the annotation of records relating to Mr Duncan. Most of what she said was by way of her opinion about the utility of his request and its purpose. She made what could be characterised as factual statements that Mr Duncan was "retired due to inefficiency" and "had appealed to every appeal board available and had been on the whole be unsuccessful". 30 Mr Oakley's response to Mr Duncan on review did not set out, as required by section 54(4) of the Freedom of Information Act, read with section 26(1), findings on material questions of fact referring to material on which those findings were based and stating the reasons for the decision. It might reasonably be inferred that he agreed with Mrs Greif's reasons as set out in her reply to Mr Duncan's request but he did not say so. 31 Mr Duncan argues that the above omission on the part of Mr Oakley means that there was no review decision and therefore no foundation for an application to the AAT. That contention is unsustainable. There was a decision by Mr Oakley. His failure to comply with section 26 does not deprive it of that character. As section 26 itself makes clear, by the premise upon which it operates, there is a distinction between the making of a decision under the Act and the provision of adequate reasons for that decision. In my opinion there is no basis for the contention that there was no avenue of appeal to the Tribunal under section 55. That avenue was available it would allow review on the merits and also a more complete disposition than could be available on judicial review. 32 In my opinion the appeal proposed by Mr Duncan has no merit. Neither in my opinion does it have utility. Mr Duncan has achieved a significant amendment and annotation to the email. Apart from that the email is largely an expression of Mrs Greif's opinion. A further pursuit of this matter by Mr Duncan in respect of that email is a time-wasting imposition on public officials who have serious work to do. Moreover it offers little or no benefit for him. Conclusion: 33 For the preceding reasons Mr Duncan should not be given leave to appeal and his proposed appeal should be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.