LEE -v- DEPARTMENT OF JUSTICE [2021] WASCA 152 (31 August 2021)

4 The respondent is correct to complain that the metadata issue is a new point on the further appeal in this court. Assuming, in an appeal of the present type, that this court may entertain a question of law that was not raised in the intermediate appeal, the present case does not qualify as an exceptional circumstance where the court will correct error by reference to a new point not advanced before the primary court. The appeal is without merit. It requires acceptance that the Commissioner made an alleged factual error in a manner that is outside the scope of a permissible appeal under s 85(1) of the Act.

5 The appellant is a director of Kingsfield Holdings Pty Ltd. On 20 April 2015 Kingsfield was convicted of an offence under the Food Act 2008 (WA) and fined $2,500 plus costs in the amount of $7,500. The fine and costs were paid in full on 4 June 2015 (within about six weeks after the conviction). On 14 June 2018 (some three years later) the appellant made an application to the respondent seeking access to documents relating to the enforcement and collection of the fine imposed on Kingsfield. The access application was made in the following terms:

I seek access to documents concerning and relating to the enforcement and collection of the fine imposed on Kingsfield Holdings Pty Ltd, on 20 April 2015, being convicted of charge number FR 7710 of 2013, being a fine of $2500 and costs of $7500, by the State of WA or any agency of the State of WA.[2]

6 Before the primary judge, the then counsel for the appellant informed the court that, in effect, the appellant was seeking any such document that might be held by the Fines Enforcement Registry (FER).[3]

7 The respondent failed to deal with the access application in the timeframe provided under the Act. Accordingly, the respondent was deemed to have refused access to the requested documents. The appellant applied to the Commissioner for external review of that deemed decision.[4] The Commissioner dealt with that application as a complaint under s 65(1)(d) of the Act. It is convenient to address the Commissioner's decision on the complaint after having outlined the relevant statutory framework.

8 The Act provides for public access to documents. The objects of the Act are to enable the public to participate more effectively in governing the State and to make the persons and bodies that are responsible for State and local government more accountable to the public (s 3(1)). Those objects are to be achieved by, among other things, creating a general right of access to State and local government documents (s 3(2)(a)).

9 The defined term 'document' is a key concept under the Act. The Glossary to the Act (see s 9) defines a 'document' as meaning, among other things, any record or part of a record. The term 'record', as also defined in the Glossary, means any record of information however recorded. It includes, by par (f) of the definition, any article on which information has been stored or recorded, either mechanically, magnetically or electronically.

10 In this court, the appellant submitted, and the respondent accepted, that metadata falls within the scope of the term 'record' and thus is incorporated into the term 'document', as defined.[5] By 'metadata' the appellant referred to electronic information created by and in an electronic document in the form of electronic data - ie information embedded in the electronic record itself. That reflects the dictionary meaning of the term, being 'information about data, especially in relation to its structure and organisation'.[6]

11 The concept was described in the following terms by Tamberlin J in Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd:

The expression 'meta-data,' which is the subject of a substantial part of the claim for discovery in relation to electronic records, is a reference to electronic information created by and embedded in electronic documents in the form of electronic data. The term describes data contained within an electronic file relating to the identification, origin or history of the file itself. It is, in effect, electronic information about other electronic data. Meta-data can be used to ascertain the author and origin of a document, the existence of any attachments, and whether the document was sent or received by any particular individual. The information which is contained in the meta-data is not visible on a print-out of the relevant document, which shows only the face content and does not disclose the layers of electronic data beneath the visually readable information.[7]

12 Given the parties' agreement, we assume, without deciding, that metadata can be a 'document' within the meaning and for the purpose of the Act.

13 Part 2 of the Act deals with access to documents. Subject to and in accordance with the Act, a person has a right to be given access to the documents of an agency other than an exempt agency (s 10(1)). It is accepted that the respondent is an agency. A person wishing to obtain access to one or more documents of an agency may make an application to the agency (s 11(1)). There are form requirements for the access application (s 12). Among other things, the access application must give enough information to enable the requested documents to be identified (s 12(1)(b)). The agency then has various duties as to the access application (s 13). These include giving the applicant written notice of a decision whether to give or refuse access to the requested documents (s 13(1)(b) and s 30).

14 There is a deemed refusal to give access if the applicant does not receive such notice within 45 days (although there are circumstances in which the 45 days may be shortened or extended) (s 13(2) ‑ (6)).

15 It is not necessary to outline the whole of div 2 of pt 2 providing for the procedure for dealing with access applications. However, it is necessary to reproduce s 26 dealing with documents that cannot be found or do not exist:

(1) The agency may advise the applicant, by written notice, that it is not possible to give access to a document if:

(a) all reasonable steps have been taken to find the document; and

(b) the agency is satisfied that the document:

(i) is in the agency's possession but cannot be found; or

(ii) does not exist.

(2) For the purposes of this Act the sending of a notice under subsection (1) in relation to a document is to be regarded as a decision to refuse access to the document, and on a review or appeal under Part 4 the agency may be required to conduct further searches for the document.

16 Accordingly, by s 26(1), after having taken 'all reasonable steps' to find a document, an agency may advise an applicant that it is not possible to give access to a document where the agency is satisfied that the document cannot be found or does not exist. A notice to this effect is deemed to be a decision to refuse access to the document (s 26(2)).

17 Division 5 of pt 2 of the Act deals with internal review of decisions as to access. There was no internal review in the present case. For that reason this summary may move directly to pt 4 of the Act providing for external review of decisions and appeals. In that regard the Act provides for an office of the Commissioner (s 55) and the functions of the Commissioner (s 63). The main function of the Commissioner is to deal with complaints under pt 4 including complaints about decisions made by agencies in respect of access applications (s 63(1)). An access applicant may make a complaint against an agency's decision to refuse access to a document (s 65(1)(d) and s 65(2)). In dealing with a complaint the Act makes provision for notification of the agency (s 68), the parties to the complaint (s 69) and the procedure for dealing with the complaint (s 70). The Commissioner has an inquisitorial function which goes beyond normal merits review - the Commissioner may obtain information from such persons or sources and make such investigations and inquiries as the Commissioner thinks fit (s 70(1)).

18 By s 67(1)(b), at any time after receiving a complaint, the Commissioner may decide not to deal with the complaint, or to stop dealing with the complaint, because it is frivolous, vexatious, misconceived or lacking in substance. Written reasons for such a decision must be provided to the complainant (s 67(2)). Otherwise, assuming there is no decision to stop dealing with the complaint under s 67(1), the Commissioner must make a decision in relation to the complaint (s 76(2)), providing reasons for the decision to each party (s 76(5) ‑ (6)).

19 Pursuant to s 85(1) of the Act, an appeal lies to the Supreme Court 'on any question of law' arising out of any decision of the Commissioner on a complaint relating to an access application. A decision under s 67(1)(b) of the Act to stop dealing with a complaint relating to an access application because it is lacking in substance is such a decision. Appeals under s 85(1) are in the nature of judicial review insofar as the so‑called appeal is only 'on a question of law'. There is conferral of jurisdiction to examine a relevant decision of the Commissioner for legal error and no more. The subject matter of the appeal is the question or questions of law. In such an appeal it is essential that the question of law relied on be identified with precision.

20 By s 87(1), on the determination of an appeal under s 85(1), the Supreme Court may by order:

(a) confirm the Commissioner's decision; or

(b) vary the Commissioner's decision; or

(c) set aside the Commissioner's decision and:

(i) make a decision in substitution for that decision; or

(ii) remit the matter to the Commissioner for reconsideration with any direction or recommendation the Supreme Court thinks fit.

21 The Commissioner required the respondent to produce copies of each document falling within the appellant's access application and to complete the decision‑making process in relation to the access application. The respondent provided a decision on 26 October 2018. The respondent granted access to two documents relating to the payment of the fine. However, the respondent refused access to documents concerning the enforcement of the fine on the ground that no such records existed. In this respect the respondent plainly invoked s 26(1)(b)(ii) of the Act.

22 The documents as provided by the respondent comprised print-outs of screen shots.[8] These showed the fine having been paid. However, on one document, while it was recorded that the fine had been 'Paid in Full', there was a further entry that read: 'Re-start enforcement process - 02 Oct 2015 07:32 PM'.[9]

23 The entry, on its face, post-dated the payment of the fine and the costs - payment having occurred on 4 June 2015. Standing back, it is not obvious why any enforcement process would have re-started after payment of the fine.

24 The appellant queried the latter entry with an officer of the respondent. Subsequently, by email dated 6 November 2018, the appellant informed the Commissioner that he, the appellant, was of the view that the respondent had not found all the documents within the scope of the access application. The appellant further submitted that the respondent had not taken all reasonable steps to find all relevant documents.[10] The Commissioner treated this as a second s 65 complaint and proceeded to deal with the complaint (second complaint). On 18 June 2019 the Commissioner issued a letter in which, in substance, the Commissioner set out her preliminary view that the respondent was justified in its decision to refuse the appellant access to further documents on the basis that such further documents could not be found or did not exist.[11]

Having considered all of the material before me including the submissions made by the agency and you, I am not persuaded that there are reasonable grounds to believe that further documents within the scope of your access application exist.

...

On the information currently before me I am satisfied that further documents cannot be found, or do not exist, as described in section 26 of the FOI Act.[12]

26 The Commissioner's letter dated 18 June 2019 summarised the reasons for her preliminary view. In substance:

1. The Commissioner identified the factual background and her understanding of the effect and operation of s 26 of the Act. This included describing the scope of the access application in the terms reproduced at [5] above.

2. The Commissioner recorded the contentions of the appellant and the respondent. These included the respondent's advice to the appellant that:

The fine and costs were referred to the [FER] by Fremantle Court on 20 April 2015. Enforcement action by the FER for a fine of this type would only commence at the request of the prosecuting authority. No request by the prosecuting authority was made for enforcement of this fine and the fine was paid in full on 4 June 2015. As a result, no documents relating to the enforcement of the above fine were created by the FER.[13]

3. One of the Commissioner's officers had attended on the FER to obtain an overview of the process. The officer determined that:

(a) The FER is responsible for the enforcement of all fines issued in Western Australian courts.

(b) A court fine is registered with the FER after it has been imposed.

(c) There are some fines which are enforced automatically if payment is not received by the due date.

(d) However, in the present case, the Department of Health (as the prosecuting authority) had to initiate enforcement action.

4. The Commissioner was not persuaded that there were reasonable grounds to believe that further documents within the scope of the access application existed. The fine was paid in full. Accordingly, no request to enforce payment of the fine was received from the Department of Health. The matter was concluded as the fine and costs had been paid in full.

5. On the information before her, the Commissioner was satisfied that further documents could not be found, or did not exist, as described in s 26 of the Act.

27 The Commissioner's preliminary view invited the appellant to make any further submissions relevant to the matter for determination. The appellant took up that opportunity. As the appellant's case relies heavily on what was then said by the appellant,[14] we will reproduce the relevant parts of the appellant's email dated 19 June 2019:

In its Notice of Decision dated 26 October 2018 the agency advised that 'no documents relating to the enforcement of the above fine were created by the FER'.

Even if that is correct this submission does not address whether it has control or possession of documents that are within the scope of my application.

I sought documents in my application 'concerning and relating to the enforcement and collection of the fine imposed on Kingsfield'.

The screen shot provided with the Notice indicated the last action taken was RE: start enforcement process 02 October 2015 07.32PM.

This entry in my view concerns and relates to the enforcement and collection of the fine imposed on Kingsfield.

I submit that the Agency would be able to access the source of this entry and the staff or contractor who made this entry.

These may be electronic records but are also considered documents for the purposes of the FOI Act.

I would submit that such documents are in the control or possession of the Agency and the Agency has the capacity to provide them to me.

In my view such documents fall squarely within the application that I made.

I would request that the Agency be compelled to provide these documents.[15] (original emphasis)

28 In written submissions in this appeal the appellant sought to emphasise the statements within the email that:

I submit that the Agency would be able to access the source of this entry and the staff or contractor who made this entry.

These may be electronic records but are also considered documents for the purposes of the FOI Act.[16] (emphasis added)

29 The Commissioner made a final decision on 16 August 2019. The Commissioner found, conformably with her preliminary view, that the respondent was justified in its decision to refuse access to documents on the basis, in effect, that the documents could not be found or did not exist. For the reasons stated in the preliminary view letter of 18 June 2019, and the further letter of 16 August 2019, the Commissioner determined pursuant to s 67(1)(b) of the Act to stop dealing with the complaint on the basis that the complaint was lacking in substance.[17]

The intermediate appeal before the primary judge

30 The appellant commenced an appeal in the General Division of the Supreme Court. The grounds of appeal were amended, by leave, at the hearing before the primary judge.[18] The appellant says that only ground 2(a) on the intermediate appeal is relevant to this appeal.[19] Ground 2(a) in the intermediate appeal provided:

The Commissioner erred in law in her Formal Decision as it was unreasonable and/or failed to take into account relevant considerations in that the Commissioner failed to consider or give proper consideration to:

(a) the nature and extent of any searches actually undertaken by the respondent agency ...[20]

31 Accordingly, ground 2(a) focussed on the searches undertaken by the respondent. In this respect, ground 2(a) targeted a different complaint to ground 2(b). Ground 2(b) - which was not reagitated on this appeal in any way - was concerned with the 2 October 2015 entry as described at [22] above. It contended that the Commissioner's decision was unreasonable as she failed to give proper consideration to the entry in the context of other material.

32 Ground 2(a) as drafted in the terms reproduced at [30] above might be thought to have raised two different types of legal error: legal unreasonableness and failure to take into account one or more relevant considerations. However, at the hearing before the primary judge, the then counsel for the appellant clarified that the ground only raised legal unrea[21]nableness.21 Counsel for the appellant argued the appeal on the basis that a failure to take relevant matters into account may render a decision legally unreasonable and, in that respect, amount to an error of law. Counsel referred to and relied on various passages in Minister for Immigration and Citiz[22]ship v Li.22 Moreover, the intermediate appeal was advanced in terms of outcome unreasonab[23]ness only.23

33 In substance, as was confirmed in this court, the appellant based his contention of legal unreasonableness on the absence of 'any indication' that in coming to her decision the Commissioner had considered the nature and extent of the searches undertaken by the respondent.[24] This, it was said, rendered the Commissioner's decision wrong as a matter of law in that it amounted to a final conclusion by the decision-maker that was unreasonable in a legal sense.[25]

34 The appellant did not identify the question of law relied on in relation to ground 2(a). That omission is serious and regrettable. The relevant question of law ought to be identified explicitly; it should not be left for distillation from the ground of appeal. The existence of a question of law is both a qualifying condition to the invocation of the court's jurisdiction and the subject matter of the appeal itself.[26] In substance, however, it appears that the question of law relied on was whether the Commissioner's decision that the second complaint was lacking in substance was legally unreasonable (in the Li sense) because the Commissioner failed to consider or give proper consideration to the nature and extent of the searches undertaken by the respondent.

35 The primary judge resolved that question in the negative. Her Honour found that she was not satisfied that the Commissioner's decision was unreasonable. Rather, it was open to the Commissioner to conclude that there was 'no substance' in the appellant's complaint.[27]

36 On ground 2(a), the primary judge framed the issues as being:[28]

1. Did the Commissioner fail to have regard to the nature and extent of any searches actually carried out by the respondent?

37 The primary judge outlined the statutory framework in uncontroversial terms.[29] The primary judge then addressed the applicable principles where there is a contention of legal unreasonableness.[30] It is not necessary to recount the principles as enunciated by the primary judge. In this court the appellant did not challenge the primary judge's exposition of the principles.[31]

38 On the first issue, the primary judge accepted that the Commissioner did not refer in her decision to the nature and extent of the respondent's searches. However, her Honour was not satisfied that the Commissioner failed to have regard to the nature and extent of the respondent's searches. That alone meant that ground 2(a) had to be dismissed.[32] However, the primary judge went on to observe that, even if the Commissioner did fail to have regard to the nature and extent of the searches undertaken by the respondent, it would not necessarily mean that the Commissioner's decision was legally unreasonable.[33]

39 The primary judge held that, on the information before the Commissioner, it would have been open to the Commissioner, acting reasonably, to conclude that there were no reasonable grounds to believe that further documents existed within the scope of the access application without first considering the nature and extent of the searches that had been conducted.[34]

The ground of appeal and the parties' submissions

The learned Judge erred in law in finding that [the Commissioner's] decision disposing of a complaint made by the appellant on 26 August 2018 pursuant to s 65 of [the Act] was not unreasonable for failing to consider or give proper consideration to the nature and extent of any searches actually undertaken by the respondent agency in response to the appellant's application for access to documents made on 14 June 2018 pursuant to s 11(1) of the Act when the Commissioner, in deciding whether the respondent agency had been justified in refusing access pursuant to s 26 of the Act, gave no consideration to the question of whether the respondent agency had searched for metadata.

41 Accordingly, on appeal in this court the appellant advanced a similar type of complaint to that previously made in ground 2(a) (as before the primary judge) but the appellant did so by reference to metadata and lack of consideration as to whether the respondent had conducted searches for metadata.[35]

42 The appellant contended that both the Commissioner and the primary judge had overlooked an 'important aspect' of his access application, namely that both 'on its own terms' and by virtue of the 19 June 2019 email the access application included a request for access to metadata.[36] The appellant submitted that:

1. Objectively speaking, on the information available to the Commissioner, there was a likelihood or at least a possibility that relevant metadata existed.[37]

2. Neither the Commissioner nor the primary judge took metadata into account as a category of document to which the appellant sought access.[38]

3. Thus, contrary to the primary judge's conclusion mentioned at [38] above, it should be inferred that the Commissioner did not have regard to the nature and extent of the searches actually undertaken (it not being suggested that those searches included a search fo[39]metadata).39

4. In that context it was legally unreasonable for the Commissioner to arrive at the conclusion that the complaint lacked substance without considering the nature and extent of the searches actually undertaken and an error on the primary judge's part to hold that the Commissioner could do otherwise.[40]

43 Accordingly, in the appeal to this court, the appellant's case was essentially that the Commissioner's decision that the second complaint was lacking in substance was legally unreasonable in that:[41]

1. the appellant's access application sought metadata; and

2. the Commissioner gave no consideration to whether all reasonable steps had been taken to find such metadata, such that it could not be excluded, as logically possible, that such metadata existed.

44 In the latter respect, the appellant went so far as to contend that there must be metadata[42] and that no reasonable steps had been taken to find such documents.[43]

45 Moreover, according to the appellant, the primary judge erred in law as her Honour failed to consider and find that the Commissioner's decision was legally unreasonable in this way. In that regard the appellant said that the primary judge's reasoning was wrong. But it was only wrong because the primary judge did not appreciate that, and did not consider whether, there was a failure to search for metadata.[44]

46 The respondent conceded, quite properly, that the primary judge did not consider whether the Commissioner had failed to have regard to whether the respondent had searched for metadata.[45] That concession should be accepted; the primary judge did not view the appeal within the prism of 'metadata' as is the focus of this appeal. However, the respondent contended that:

1. The intermediate appeal did not raise (or alternatively did not clearly and adequately raise) the metadata issue.[46]

2. It followed that there was no relevant error on the part of the primary judge.[47]

3. There were not exceptional circumstances so as to permit the appellant to advance the metadata issue - as a new point - on the further appeal in this court.[48]

47 In the alternative, the respondent contended that the appellant's argument based on the metadata issue lacked merit. The respondent said that the Commissioner did not consider that the appellant was seeking access to metadata. Moreover: (1) the metadata issue could not have resulted in ground 2(a) being upheld as, in terms, the ground was predicated on the searches actually undertaken; and (2) insofar as the Commissioner understood the appellant's access application as not seeking metadata, any error in that regard was no more than a factual error outside the scope of a permissible appeal under s 85(1) of the Act.

48 Accordingly, the respondent submitted that were the appellant permitted to raise and argue the metadata issue it would inevitably be resolved unfavourably to the appellant.[49]

49 Before turning to a consideration of the single ground of appeal, it is necessary to deal with an application on the part of the appellant to adjourn the appeal hearing.

50 The appellant applied to adjourn the appeal hearing by an application in an appeal filed 15 June 2021 (the day immediately prior to the appeal hearing). The application was supported by the appellant's affidavit sworn 15 June 2021. The application also sought other orders. Chief among the other orders sought was an order that the respondent file and serve an affidavit deposing as to the existence of documents which the appellant said should have been provided pursuant to his access application. The appellant also sought that the affidavit detail the inquiries and searches made for such documents and provide an explanation as to why the documents could not be located or did not exist or never existed. The appellant sought the adjournment of the appeal hearing so that the affidavit could be filed and served.

51 The application was listed to be heard with the appeal hearing. At the commencement of the appeal hearing, having heard from the parties, the court dismissed the application. In dismissing the application the court foreshadowed that reasons for doing so would be provided as part of the reasons on the appeal. What follows are our reasons for dismissing the appellant's application in an appeal dated 15 June 2021.

52 It was not in the interests of justice that the appeal hearing be vacated. The affidavit that the appellant sought would have had no bearing on the question of legal unreasonableness raised by the appellant's single ground of appeal. In that respect the affidavit as sought could provide no basis for the vacation of an appeal hearing that had been listed for some time. In any case:

1. The application assumed that the court had power, and would exercise its discretion, to order that the respondent file and serve such an affidavit. The appellant was unable to explain the basis for his assertion that the court was empowered to make such an order,[50] the question of power being live in circumstances where:

(a) there is a closely confined right of appeal under s 85(1) of the Act;

(b) the order sought assumed the appellant's success in the appeal and would outflank the relief that the appellant sought by the appeal; and

(c) the orders sought exceeded the orders wanted that the appellant had contended for as part of his appellant's case.

2. The application assumed, contrary to Commissioner for Consumer Protection v Carey,[51] that additional evidence is admissible in an appeal on a question of law grounded in s 85(1) of the Act. Even assuming that the court had power to order the respondent to make such an affidavit, we would decline to do so - in the exercise of discretion - where the affidavit was not admissible in the appeal.

53 The adjournment of the appeal hearing was sought to provide time for the respondent to file and serve the affidavit that the appellant sought. As there was no proper basis for the court to order the respondent to file and serve such an affidavit, the application for adjournment of the appeal hearing was without merit.

Evaluation and disposition of the appeal The metadata issue is a new point on appeal

54 The limitations on advancing a new point on appeal are well established. There is a recent synthesis of those principles in Zerjavic v Chevron Australia Pty Ltd.[52] We adopt without reproduction that statement of the general principles. Three points are worth emphasising:

1. It is only where there are exceptional circumstances - sometimes referred to as 'most exceptional' or 'very exceptional' - that this court will undertake its task of correcting error by reference to a new point not advanced before the primary court.

2. The opportunity to assert a new point should only be granted where the interests of justice require it and that course can be taken without prejudice to the other party.

3. It is necessary to look at the actual conduct of the proceedings to see whether a point was taken before the primary court. Usually the reasons of the primary court are the best indication of what matters were in issue between the parties below.

55 In applying the general principles to the present circumstances, consideration should be given to the nature of an 'appeal' to the General Division of the Supreme Court under s 85(1) of the Act. The appeal is on a question of law; and, as mentioned previously, that question of law provides the subject matter of the appeal (see [34] above). Accordingly, the question of law in the intermediate appeal before the primary judge must mark out whether, on a further appeal to this court, an unsuccessful appellant seeks to raise a new point.

56 There is a possible issue as to whether an appellant may raise, for the first time before this court, a question of law which was not before the primary court on the intermediate appeal. There is but one right of appeal under s 85(1) of the Act. It might be that an appeal to this court can only be on the basis of error by the primary judge in determining a question of law that was raised in the intermediate appeal. In other words it might be that a new question of law cannot be raised in any further appeal to this court.

57 The point was not the subject of considered submissions at the appeal hearing. The Full Court of the Federal Court of Australia has considered a similar issue in the context of the broadly analogous s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), concluding that the Full Court has jurisdiction to hear and determine a question of law raised for the first time before the Full Court.[53] We will assume, without deciding and favourably to the appellant, that this court has the power to entertain a new question of law in an appeal of the present kind. Whether this court ought to exercise the power requires application of the principles commonly applied in determining whether a litigant will be permitted to advance a new point on appeal.

58 The essential proposition advanced by the appellant in the appeal to this court is summarised at [43] above. It raises, in our opinion, a different - and thus 'new' - question of law to the question of law raised in the intermediate appeal before the primary judge. Relevantly, while the intermediate appeal raised generically the nature and extent of the searches undertaken by the respondent, it is only in the subsequent appeal to this court that this is put in terms of a failure to consider or give proper consideration to whether the respondent searched for metadata. Moreover, unlike the intermediate appeal before the primary judge, the appeal in this court is premised on the proposition that the appellant's access application sought metadata and the Commissioner was in error in not appreciating the scope of the access application (see [43.1] above).

59 Nowhere in ground 2(a) before the primary judge, or the appellant's written submissions before the primary judge, was there any reference to metadata or the apparent absence of any search for metadata.

60 In oral submissions before the primary judge, the then counsel for the appellant made two passing references to metadata. Counsel stated:

[W]hat [the appellant] was really seeking here was metadata about that notation.[54]

[T]here's likely to be all sorts of possibly automatic notations attached as metadata to [the entry] and it doesn't seem to us that anyone has even considered that possibility.[55] (emphasis added)

61 Five things should be noted about those statements:

1. First, the scope of the intermediate appeal - and the question of law the subject of the appeal - is to be identified from the appeal notice containing the amended grounds of appeal[56] and the appellant's written submissions insofar as they are consistent with the amended grounds of appeal. Two fleeting references to metadata mid-way through oral submissions do not enlarge the scope of the appeal.

2. Second, although counsel mentioned the term 'metadata' he did not provide any elaboration or explanation about what he meant by that term. It is to be inferred that counsel for the appellant in the intermediate appeal did not treat metadata as a concept critical to the primary judge's understanding of the issues in the intermediate appeal.

3. Third, the reference was to what the appellant was seeking rather than the Commissioner having failed to consider whether reasonable steps had been taken to search for metadata.

4. Fourth, in context, those submissions were made in support of ground 2(b) rather than ground 2(a) - ground 2(b) being directed to the 2 October 2015 entry, ie the notation on the screen shot. The reference to metadata was based on a contention, by reference to the entry, that 'there was likely to be further documents about the place',[57] rather than being directed to whether reasonable steps had been taken to find metadata itself (that being the central proposition on this appeal).

5. Fifth, the submissions in support of ground 2(a) - both written and oral - did not advance a contention that the Commissioner had failed to consider whether the respondent had searched for metadata.

62 It is clear, reading the primary reasons as a whole, that the primary judge did not understand the appellant to have raised for consideration whether the Commissioner's decision was legally unreasonable because the Commissioner failed to consider whether the respondent had searched for metadata. It would have been quite remarkable for her Honour to have come to such an understanding. The two passing references to metadata in the course of counsel for the appellant's oral submissions were plainly inadequate to raise for determination the question of law that the appellant seeks to agitate on this appeal.

63 The respondent is correct to complain that the appellant advances a new question of law on his further appeal to this court. In determining whether this is one of those exceptional circumstances in which a new point ought to be entertained on appeal, it is convenient to turn to the merits of the appellant's contention. Consideration should first be given to the predicate on which the appellant said the appeal was based - that the Commissioner misapprehended the scope of the access application.

64 As noted in [43] above, the appellant contended, in effect, that the ground of appeal is predicated on the assumption that the appellant's access application incorporated a request for metadata. This presents as an initial hurdle for the appellant's appeal.

65 Whether the access application requested metadata is a question of fact. The distinction between questions of fact and questions of law was considered in Collector of Customs v Agfa-Gevaert Ltd. The High Court stated:

The distinction between questions of fact and questions of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.[58]

66 It is unnecessary and would be unproductive to attempt to catalogue the various distinctions between a question of fact and a question of law.[59] For present purposes it suffices to observe that a finding of fact includes an action of a person - in this case, the appellant's request contained in the access application.[60] Questions of law may arise in connection with a question of fact. For example, whether there is evidence capable of supporting a particular finding of fact is a question of law. So too is whether an inference of fact is open to be drawn from other facts. These examples are not exhaustive. However, it is settled that there is no error in law in simply making a wrong finding of fact.[61]

67 The Commissioner did not expressly set out her understanding of the scope of the access application. However, it was common ground on the appeal that the Commissioner did not consider that the access application incorporated a request for metadata: (1) the appellant said that the Commissioner 'overlooked' and 'did not come to grips with the fact that' the access application included a request for metadata;[62] (2) the respondent said it should be inferred that the Commissioner did not consider that the access application was seeking access to metadata.[63]

68 We accept, conformably with the parties' common position before this court, that in arriving at her decision pursuant to s 67(1)(b) of the Act the Commissioner understood the scope of the access application as not incorporating a request for access to metadata. The Commissioner made a finding as to the scope of the access application that went no further than a bare repetition of the words used by the appellant.[64]

69 The appellant seemingly accepted that whether the access application sought metadata was a question of fact; but even so there was, in his submission, an error of law on the part of the Commissioner in concluding that his access application did not incorporate a request for metadata.[65] The appellant contended that this was to form a conclusion which was not reasonably open as to the meaning of the access application. The appellant made two other points. First, metadata, being electronic information, was within the concept of document as defined by the Act and an agency such as the respondent (and the Commissioner) ought to understand an access application seeking 'documents' to include and pick up a request to provide all metadata falling within the descriptive categories as requested.[66] Second, the appellant relied on the reference in his 19 June 2019 email to 'electronic records'.[67]

70 The allegation that the Commissioner erred in law by misapprehending the scope of the access application was not raised before the primary judge. If and insofar as it is a question of law, it raises another new question of law. More problematic, even if the single ground of appeal is read generously, it cannot be understood as contending that the Commissioner's decision was vitiated by an error of law insofar as the Commissioner made a finding of fact as to the scope of the access application. There was no ground of appeal based on an error of law in not finding that the access application included a request for metadata.

71 This deficiency in the appellant's grounds of appeal is itself determinative of the appeal against the appellant. In the absence of an appropriate ground of appeal, the appellant cannot establish the assumption which forms the premise of the appeal.

72 Let it be assumed, however, that there was a ground of appeal that raised a question as to whether the Commissioner erred in finding that the access application did not incorporate a request for metadata, and that such a ground raised a question of law on the basis contended for in oral submissions (see [69] above), namely that a conclusion that the access application did not incorporate a request for metadata was not reasonably open. That contention should not be accepted.

73 We have already referred to the appellant's assertion that his access application included a request for access to metadata (see [42] above). In oral submissions, however, the appellant conceded that his access application did not refer to metada[68] 'as such'68 and accepted 'the fact that it [ie metadata] wasn't specifically sought' (suggesting, however, that this was [69]relevant).69 The concession that the access application did not refer to metadata as such, it not being specifically sought, was correct. In terms the access application sought documents - documents concerning and relating to the enforcement and collection of the fine - not metadata about documents. In this respect it is convenient to repeat the terms of the access application. The appellant said that:

I seek access to documents concerning and relating to the enforcement and collection of the fine imposed on Kingsfield Holdings Pty Ltd, on 20 April 2015, being convicted of charge number FR 7710 of 2013, being a fine of $2500 and costs of $7500, by the State of WA or any agency of the State of WA.[70]

74 It was reasonably open to the Commissioner to find that the access application requested those documents (and only those documents) identified on the ordinary and natural meaning of the description provided in the application. That is necessarily the case when it is recalled that s 12(1)(b) of the Act provides that an access application has to:

give enough information to enable the requested documents to be identified.

75 On the face of the access application, it was reasonably open to the Commissioner to find that the access application requested actual documents (hard copy or electronic) concerning and relating to the enforcement and collection of the fine as distinct from metadata about such documents.

76 If what the appellant sought was metadata about documents (or extended to metadata about documents) - as distinct from actual documents - it would have been simple enough for the appellant to say so in his access application. Indeed, there being a request for access to 'documents', it is, in the absence of a specific request for metadata, reasonably open to infer that what is sought is access to actual documents (hard copy or electronic) as opposed to metadata about such documents. The Act has a number of provisions that turn on the scope and nature of the documents sought in an access application. For example, the ambit of an application may be reduced by agreement (s 14); in some circumstances an agency may refuse to deal with an application where it would divert a substantial and unreasonable portion of the agency's resources (s 20(1)); and the way in which access is to be given alters depending on the type of document (s 27(1)). An applicant seeking access to metadata about documents would, ordinarily, be expected to specify that this is what is sought to enable the agency to identify the requested documents and consider how access might be given.

77 The appellant relied on two matters in support of his contention that there had been an error of law in determining the scope of the access application. In substance the appellant said: (1) it was consistent with the definitions in the Act that references to documents be understood to include references to metadata; and (2) in replying to the Commissioner's preliminary view he had sought electronic records.

78 The first matter is based on a misconception. It assumes that, if metadata can constitute a 'document' as defined by the Act, all references to documents in connection with an access application under the Act must be taken to include a reference to metadata. That deductive reasoning is flawed.

79 A request for documents may in a particular instance be taken to include a reference to metadata about the documents. But that will not always be the case. A vast array of metadata may be embedded in a given electronic document. The respondent submitted, and we accept, that it would impose a substantial and unreasonable burden if an agency was required to read every access application seeking 'documents' on a particular subject as necessarily also seeking all metadata about electronic documents on that subject.[71] Even if metadata can be a 'document' for the purposes of the Act it does not mean that in all cases a request for access to documents includes a request for access to metadata about documents.

80 The second matter is also without merit. The scope of the access application is to be determined by what was requested in the application of 14 June 2018 rather than the appellant's subsequent letter of 19 June 2019. In any case the letter dated 19 June 2019 only referred to 'electronic records' rather than metadata about documents. It is consistent with a request for documents in electronic form as opposed to hard copy.

81 On an ordinary and natural reading of the access application it was reasonably open to the Commissioner to determine that the appellant was requesting actual documents (hard copy or electronic) rather than metadata about such documents. The suggestion that the Commissioner made an error of law in this respect cannot be accepted - all the more so when it was never the subject of a ground of appeal in the primary court or this court. The appellant's failure on this point is fatal to the ground of appeal as in fact prosecuted by the appeal. The ground of appeal was premised on the contention that the appellant's access application incorporated a request for metadata. It postulated a position that was contrary to the factual basis on which the Commissioner arrived at her determination that the appellant's complaint was lacking in substance.

82 The respondent's second answer to the merits of the appeal should be accepted. The Commissioner did not make any legal error in misapprehending the scope of the access application. Any such error, if there were one (and there was not), was no more than a factual error outside the scope of a permissible appeal under s 85(1) of the Act. As the appeal necessarily fails for this reason, there are not exceptional circumstances so as to permit the appellant to advance the metadata issue (being a new point) on the further appeal in this court. It is therefore not necessary to address the appellant's argument that the Commissioner's decision was legally unreasonable because the Commissioner gave no consideration to whether all reasonable steps had been taken to find metadata about documents relating to the enforcement and collection of the fine.

83 The single ground of appeal should be dismissed.

85 The parties should be heard on the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Vaughan

[1] Lee v Department of Justice [2020] WASC 105 (primary reasons); Lee v Department of Justice [2021] WASC 119. See also Lee v Department of Health [2020] WASC 103.

[3] ts 23. See also Primary reasons [3].

[5] Appellant's submissions par 34 WAB 13; Respondent's submissions par 42 WAB 29.

[6] Macquarie Dictionary (Online Version).

[7] Jarra Creek Central Packing Shed Pty Ltd v Amcor Ltd [2006] FCA 1802 [11].

[14] Appellant's submissions pars 17, 36 WAB 8, 13 - 14.

[16] Appellant's submissions par 17 WAB 8.

[18] ts 9; Primary reasons [30] - [34].

[19] Appeal ts 17; Appellant's submissions par 19 WAB 8.

[21] ts 8 - 10; Primary reasons [31]. See also Appellant's submissions dated 5 February 2020 (GDA/11/2019) pars 25 - 30, 36.

[22] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332.

[23] ts 10 - 12; Primary reasons [31].

[24] Appellant's submissions par 28 WAB 11. See also pars 23 - 24 WAB 9 - 10.

[25] Appellant's submissions pars 24, 25.3 WAB 10 - 11.

[26] Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [21].

[28] Primary reasons [38](1)(a) - (b).

[31] Appellant's submissions par 27 WAB 11.

[34] Primary reasons [64] - [66]. See also [74] - [84].

[36] Appeal ts 12, 25 - 27; Appellant's submissions pars 30, 35 - 36 WAB 12 - 14. See also Appeal ts 11.

[37] Appellant's submissions par 38, 40 WAB 14 - 15.

[38] Appellant's submissions par 37 WAB 14.

[39] Appellant's submissions par 38 WAB 14.

[40] Appellant's submissions par 40 WAB 15.

[41] Appeal ts 6, 21, 24 - 25, 28, 31 - 33.

[45] Respondent's submissions par 8 WAB 20.

[46] Respondent's submissions pars 9, 18 - 29 WAB 20, 22 - 26.

[47] Respondent's submissions pars 10, 30 WAB 20, 26.

[48] Respondent's submissions pars 11, 31 - 34 WAB 20, 26 - 27.

[49] Respondent's submissions pars 11, 15 - 16, 35 - 41, 45 - 57 WAB 20, 21, 27 - 32.

[51] Commissioner for Consumer Protection v Carey [2014] WASCA 7 [71], [167].

[52] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] - [67].

[53] Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 [62(9)], [79]; Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 [51] ‑ [59].

[58] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 394.

[59] See, generally, Jegatheeswaran v Minister for Immigration & Multicultural Affairs [2001] FCA 865; (2001) 194 ALR 263 [52] ‑ [58].

[61] Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54, 77; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [55].

[62] Appellant's submissions par 30 WAB 12. See also par 37 WAB 14 ('the Commissioner did not give consideration to the possibility that metadata should have been searched [for]').

[63] Respondent's submissions par 15 WAB 21.

[64] See BAB 44 (while this was part of the Commissioner's preliminary view, the Commissioner relied on the reasons stated in her preliminary view letter of 18 June 2019 in deciding to stop dealing with the complaint: BAB 51).

[68] Appeal ts 18. See also appeal ts 22.

[71] Respondent's submissions par 48 WAB 30.