Plaintiff v Defendant

2 On 17 December 2021 Dr Fidge made a request ('the request') for certain documents from the Australian Health Practitioner Regulation Agency ('AHPRA') under the Freedom of Information Act 1982 (Cth) ('FOI Act'). On 11 January 2022 a senior FOI officer with AHPRA refused Dr Fidge's request ('initial decision').

3 On 15 January 2022 Dr Fidge requested an internal review of the initial decision. On 11 February 2022 the initial decision was affirmed on the same basis and for the same reasons as the initial decision ('internal review decision').

4 On 11 March 2022 Dr Fidge requested a review of the internal review decision with the NHPPC ('the NHPPC review application'). The review was commenced on 23 March 2022. On 17 May 2022 AHPRA provided the NHPPC with a letter and documents relevant to its initial decision and its internal review decision.

5 On 12 May 2023 the NHPPC conveyed a preliminary view to Dr Fidge that the internal review decision should be affirmed and invited him to withdraw his review application. Also on 12 May 2023 Dr Fidge advised the NHPPC that he would not withdraw his review application.

6 On 17 May 2023 the NHPPC decided not to continue the review because they were satisfied that the application was 'lacking in substance' ('the NHPPC decision').

7 Dr Fidge seeks judicial review in relation to the NHPPC decision. The NHPPC participated in the hearing before me in a limited way in accordance with Hardiman principles. They offered submissions limited to explaining the basis for their decision and addressing matters of power and procedure.

8 For the reasons which follow, Dr Fidge's application should be dismissed.

9 The provisions of the Health Practitioner Regulation National Law (Victoria)[1] ('National Law') establish a national registration and accreditation scheme for registered health practitioners.

10 In combination, the National Law and Health Practitioner Regulation National Law Regulation 2018 (Vic):

(a) Apply the FOI Act as a law of Victoria for the purposes of the national registration and accreditation scheme;

(b) Provide that the FOI Act applies as if it only referred to agencies and that for those purposes AHPRA is an agency;

(c) Provide that references in the FOI Act to the Information Commissioner are to be read as references to the NHPPC; and

(d) Provide that the FOI Act applies as if a reference to the Federal Court were a reference to this Court.[2]

Please provide an overview of the amounts of money you have spent on training in the financial years ending in 2017, 2018, 2019, 2020 and 2021, and the subject areas in which training was provided in those years.

12 As will be seen below, AHPRA treated Dr Fidge's request as a request for the amount spent on training in the relevant years broken down by subject matter in both the initial decision and the internal review decision. It is also how Dr Fidge's request was interpreted in the NHPPC decision. Before me, it is how Dr Fidge contended I should construe his request. Whilst the NHPPC, consistent with their participation in accordance with Hardiman principles, did not offer a view as to how the request ought to be construed, they did note that that was how they had construed the request in their decision.

13 Absent the position of the parties, I would have been inclined to the view that Dr Fidge's request should be construed differently. The presence of the comma after '2021' might be thought to require a construction that the request seeks two discrete pieces of information - the amount spent on training in the given years and the subject matter areas of that training for those years. Construed in this way the request would be interpreted such that:

(a) the first portion of the request simply requires an overview or aggregate figure for the amount spent on training in each of the given years and does not require any breakdown by reference to the subject matter of the training; and

(b) the second portion of the request requires, in effect, a list of the subject matters of training provided for the given years but does not request anything in terms of expenditure.

14 In the circumstances, I have determined Dr Fidge's application on the basis that the request is a request for the amount spent on training in the relevant years broken down by subject matter. I have done so for the following reasons:

(a) An FOI request is not to be construed with the same rigour as statute or pleadings.[3] There are good reasons for this. FOI requests will often be made by people without legal training and in circumstances where they may not have insight into the document categorisation and terms of art employed by an agency;

(b) Nonetheless, the construction of a request has to be an objective exercise. A requestor cannot just have the words of their request mean what they want them to mean;

(c) In making a decision on a request an agency must have regard to any guidelines of the Information Commissioner issued under s 93A of the FOI Act ('IC guidelines');

(d) Under the IC guidelines a request should be interpreted as extending to any document that might reasonably be included within the description the applicant has used; and

(e) In this case the interpretation of the request by the various decision makers and urged upon me by Dr Fidge was open, with all parties in effect having proceeded on that shared understanding. It is consistent with my obligations under the Civil Procedure Act 2010 (Vic) to determine the real issues in dispute to proceed on the basis that the request is to be construed as they have all construed it.

15 On 20 December 2021 an AHPRA senior FOI officer, Mr Reghenzani emailed Ms Anne Chen, senior financial accountant in finance and procurement for AHPRA. The email sets out the request and says:

In my experience, these sorts of requests for financial information will largely turn on whether our data is already set up in a way that allows us to extract the relevant information at the level of specificity requested.

Would you mind sharing with me your thoughts on:

1. Whether or not this information already exists in a report somewhere;

2. If not, is it possible to produce this information, and if so, how difficult might it be?

16 On 20 December 2021 Ms Chen responded with an email in the following terms:

We certainly could help to provide the financials.

But can I please clarify first that 'training' in this request would refer to 'staff development'.

If so, within the Annual Report, 'staff development and amenities' cost is already tabled and we then need to quantify it from the consolidation per disclosure.

Unfortunately it can't be obtained directly, but we can work around.

In terms of 'the subject areas in which training was provided in those years', I'm afraid it seems out of the insight of my team. I can summarise main activities from the detail ledger, which however may not be the best approach.

By saying this, I have copied my manager Claire in this email, and she might have some better thoughts.

(Emphasis in original)

17 On 22 December 2021 Claire Fowler, Manager, Financial Accounting, Finance and Procurement emailed the Senior FOI officer in the following terms:

In short, our financial system is not set up to report at the level this FOI requested. Financial data were captured and reported at aggregation level. It is each directorate and board's responsibility to ensure actual expenditure were aligned with their staff development target.

Secondly, we had undergone a major financial system change (from Dynamic Great Plaints to Uni4 Business World). All accounts structure were changed as a result. Financial data retrieved from two different systems implies greater difficulty and huge manual efforts to manipulate their format for meaningful comparisons.

Sorry we can't be any more helpful on this.

18 In the initial decision the Senior FOI Officer stated that following searches and consultations he had concluded that 'there are no discrete documents available that meet the terms of [the request]'. Having formed that view he was obliged to consider s 17 of the FOI Act.

(a) a request (including a request in relation to which a practical refusal reason exists) is made in accordance with the requirements of subsection 15(2) to an agency;

(b) it appears from the request that the desire of the applicant is for information that is not available in discrete form in written documents of the agency; and

(ba) it does not appear from the request that the applicant wishes to be provided with a computer tape or computer disk on which the information is recorded; and

(c) the agency could produce a written document containing the information in discrete form by:

(i) the use of a computer or other equipment that is ordinarily available to the agency for retrieving or collating stored information; or

(ii) the making of a transcript from a sound recording held in the agency;

the agency shall deal with the request as if it were a request for access to a written document so produced and containing that information and, for that purpose, this Act applies as if the agency had such a document in its possession.

(2) An agency is not required to comply with subsection (1) if compliance would substantially and unreasonably divert the resources of the agency from its other operations.

20 Section 17 of the FOI Act was considered in Collection Point Pty Ltd v Commissioner of Taxation ('Collection Point').[4] Collection Point makes clears that whilst the factual considerations in decisions under subsections 17(1) and 17(2) may overlap, decisions under those subsections are independent decisions:

The language and structure of s 17 and its operation within the Act as a whole make clear that the preconditions of the existence of the agency's obligation are independent of, and distinct from, the circumstances exempting the agency from compliance.

There is considerable potential overlap between factual matters relevant to the questions under s 17(1)(c)(i) (whether the use of a computer or other equipment is ordinarily available) and s 17(2) of the Act (whether compliance with the obligation to produce the requested document would be a substantial and unreasonable diversion of the agency's resources). The two inquiries nevertheless arise sequentially. The satisfaction of the condition under s 17(1) is a precondition for the application of s 17(2). Nor, despite the overlap, are the questions interchangeable. The satisfaction of the conditions of s 17(1)(c)(i) does not ensure satisfaction of the conditions of s 17(2), and vice versa.[5]

21 The Full Court also specifically considered the terms of s 17(1)(c)(i):

In our opinion, the computer referred to in s 17(1)(c)(i) is not merely computer hardware. Rather, it means a functioning computer system including software, that can produce the requested document without the aid of additional components which are not themselves ordinarily available.

Section 17(1)(c)(i) is directed at ensuring that an agency will not be obliged to produce a document unless the effective and comprehensive means of doing so are ordinarily available to it for the specified purpose. In that context, the computer or other equipment ordinarily available for the specified purpose must be capable of functioning independently to collate or retrieve stored information and to produce the requested document.

...

In our view, a computer might in some cases be ordinarily available within the meaning of s 17(1)(c)(i) even if a new computer program were required in order for the computer to produce the requested document. The agency might, for example, routinely commission or retain staff to produce new computer programs of the necessary kind.

...

It follows that in our opinion, the need for a new computer program to enable the computer ordinarily available to the agency for retrieving or collating stored material to produce the requested document is a fact capable of meaning that the agency cannot, by the use of a computer ordinarily available, produce the requested document.[6]

22 Having referred to Collection Point the senior FOI officer determined as follows:

Following my enquiries into the practicality of producing a document in accordance with section 17, I have been advised by the relevant internal business unit that Ahpra's computer systems do not currently enable us to easily produce a report or other discrete document detailing the information you seek at the level of specificity requested.

Ahpra's financial data is captured and reported at an aggregate level, without delineation by specific subject area of training. To create a document sourcing data across multiple financial years that would meet your request would require significant manual intervention in reviewing historical expense items and classifying them according to a taxonomy that does not already apply at a systems level.

In addition to this, over the period requested, Ahpra has undergone major systems changes and account restructuring that would make the meaningful comparison and reporting of the requested data across financial years impractical, without significant manual intervention and labour expenditure.

Having considered all of the information available to me, I am of the view that the production of a document in the terms you have requested would require the use of a computer in a manner that is not ordinarily available to Ahpra and is outside of Ahpra's ordinary or usual conduct and operations. Accordingly, I find that s 17(1) does not apply to your request, and consequently there is no obligation for Ahpra to create a document to satisfy your request.

(Emphasis added)

23 The senior FOI officer then determined that even if s 17(1) of the FOI Act did apply that the work involved in creating the document requested would amount to an unreasonable diversion of AHPRA's resources within the meaning of s 17(2).

24 Finally, the senior FOI officer drew Dr Fidge's attention to AHPRA's annual report which recorded an amount for 'Staff development and amenities' as an aggregated line item.

25 On 15 January 2022 Dr Fidge made his application for an internal review. In his application he sets out the grounds upon which he said the initial decision was wrong:

1. The reason provided that there are no documents that contain the information I have requested is untrue. There must be documents that provide the information I seek, such as invoices, which indicate what training has taken place, because these documents are required by law. I accept it is possible that no money was spent on training.

2. There must be documents that provide the information I seek because you have provided the information in the AHPRA annual reports.

3. It is certain that the information I have requested is stored on a computer because it is part of the accounts of AHPRA which could not be administered with a pen and paper. It is a normal part of the operation of a computer by AHPRA to retrieve the information I have requested. It is a fabrication to claim that retrieval of the information I have requested is not part of the normal operation of a computer.

4. The interpretation of my request that it requires comparison is mind-reading and is not true. I have not requested comparison, only expenditure by financial year.

5. The claim that the work involved in creating a document containing the expenditure would be unreasonable is untrue. In fact, the documents have already been created and used in the production of AHPRA's annual reports. All that I have requested is that part of the financial reporting that relates to training.

6. The decision is so egregiously dishonest that it does not constitute a decision as required under the FOI Act. The decision is in fact only a clumsy refusal to provide information that AHPRA must have because the information has been published by AHPRA every year. The obvious lies in the refusal that accounting is not normal computer work, or that it would be too much work, or the documents do not exist are not reasonable excuses under the FOI Act to refuse the request.

7. The request is, in fact, a simple request for a single line item of gross expenditure of public money by a government agency which would easily and quickly be provided if AHPRA intended to comply with the FOI Act. There is no mechanism available to AHPRA to refuse this request, which is limited and reasonable.

26 It will be seen that beyond simply asserting that the information must be retrievable from AHPRA's computer system, those grounds do not come to grips with the central finding which underpins the initial decision that the computer systems do not allow for a document to be produced which breaks down the expenditure items on training in the way Dr Fidge requests. In particular:

(a) the references to the information provided in AHPRA's reports elides any distinction between 'staff development and amenities' and 'training' and does not point to any information in AHPRA's reports which would demonstrate why either of those amounts could be broken down by subject area of training; and

(b) the reference to the existence of invoices for training does not assist in the resolution of a request for aggregate expenditure broken down by training subject matters.

27 The reasons for the internal review decision are succinct:

I have decided to affirm the original access refusal decision on the same basis and reasons that are set out in the original decision.

I am satisfied that no document is currently in the possession or control of Ahpra that provides an overview of monies spent on training broken down by the subject matter of the training for the year specified in your application.

I am also satisfied that producing a document containing that information would require each individual invoice to be described by the subject matter of the training in order to produce the figures you seek. This would require significant time, expense and manual intervention. Consequently Ahpra is not obliged to produce a document under s 17 of the FOI Act.

The NHPPC review application and the NHPPC investigation and decision

28 On 11 March 2022 Dr Fidge made the NHPPC review application.

29 In the NHPPC review application Dr Fidge says that AHPRA's refusal decision is unreasonable because he only seeks 'information about how much money AHPRA has spent on training for each of the last five years'.

30 On 23 March 2022 the NHPPC commenced their review and wrote to AHPRA notifying it of Dr Fidge's application. In that letter the NHPPC requested a range of documents relevant to the initial decision and internal review decision. AHPRA provided those materials on 17 May 2022 together with a letter which contained its submissions relating to Dr Fidge's application. The letter states that AHPRA's financial systems do not report on training by subject area and for this reason s 17(1)(c) of the FOI Act applies.

31 On 12 May 2023 the NHPPC wrote to Dr Fidge conveying their preliminary views as a result of the investigation. Relevantly those views may be summarised as:

(a) AHPRA's financial systems do not report on training by subject area;

(b) To produce a document meeting the request would require 'manual intervention ... necessitating analysis of individual receipts or invoices in order to categorise them according to a new and previously unreported-on taxonomy';

(c) Section 17(1)(c)(i) of the FOI Act did not apply; and

(d) If s 17(1) did apply, the work involved in creating a document would be an unreasonable diversion of AHPRA's resources under s 17(2).

32 In the NHPPC decision, the NHPPC exercised the discretion not to continue the review under s 54W of the FOI Act on the basis that Dr Fidge's review application was 'lacking in substance'.

33 Relevant portions of the reasons for that decision were conveyed to Dr Fidge in a letter dated 17 May 2023, they are:

On 12 May 2023, I communicated my preliminary view to you. In summary, I explained my view that given the circumstances of the request, s 17(1) of the FOI Act is likely not to apply in relation to your FOI request. I also explained, even if s 17(1) of the FOI Act did apply, it is likely that s 17(2) of the FOI Act would apply as the work involved in creating a document would substantially and unreasonably divert Ahpra's resources from its other operations.

My preliminary view was therefore that Ahpra's internal review decision should be affirmed, and, on this basis, I invited you to withdraw your FOI review application.

On 12 May 2023, you advised me that you will not withdraw your FOI review application.

Decision not to continue with the review

After looking closely at the internal review decision of the review and my preliminary view, I have decided to use my discretion to not continue the review. This is because I am satisfied that your FOI review application is lacking in substance. There is no evidence currently before me which supports the view that further information relevant to your FOI request can be released to you under the FOI Act.

54W Decision to review--discretion not to review

The [NHPPC] may decide not to undertake an IC review, or not to continue to undertake an IC review, if:

(a) the [NHPPC] is satisfied of any of the following:

(i) the [NHPPC] review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;

35 In Chopra v Department of Education and Training[7] the Court of Appeal considered s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) which is in similar terms to s 54W of the FOI Act. It said:

The expressions 'misconceived' and 'lacking in substance', in essence, refer to proceedings in respect of which it is readily apparent that they are hopeless and bound to fail.[8]

36 With appropriate adaptation for the fact that s 54W deals with an application for review rather than a 'proceeding', the manner in which the Court of Appeal interprets the phrase 'lacking in substance' is apposite to the circumstances of this case.

37 The question I have to answer then is whether, on the materials before me, there is reviewable error in the NHPPC's decision that the NHPPC review application was lacking in substance, that is - was it readily apparent that the NHPPC review application was hopeless and bound to fail?

38 Dr Fidge's originating motion set out seven separate grounds upon which he challenged the NHPPC decision. His written submissions contained some 10 separate headings, each of which purported to articulate a separate ground as to the errors in the NHPPC decision.

39 At the hearing of the matter Dr Fidge concentrated his argument on two propositions which were that the NHPPC had erred in determining that his application 'lacked substance' because:

(a) AHPRA had not undertaken a request consultation process as required by s 24(1) of the FOI Act; and

(b) AHPRA's decision that s 17(1) of the FOI Act did not apply or that, if it did, that s 17(2) did apply was unreasonable.

24 Power to refuse request - diversion of resources etc.

(1) If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:

(a) must undertake a request consultation process (see section 24AB); and

(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists - the agency or Minister may refuse to give access to the document in accordance with the request.

41 Section 24AA defines the term practical refusal reason, relevantly it reads:

24AA When does a practical refusal reason exist?

(1) For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:

(a) the work involved in processing the request:

(i) in the case of an agency - would substantially and unreasonably divert the resources of the agency from its other operations; or

42 Section 24AB defines a request consultation process for the purposes of s 24. As it applies in this case, it allows for an FOI applicant to consult with an officer of the agency. During the consultation period (as defined) the agency must take reasonable steps to assist the applicant to revise the request so that a practical refusal reason no longer exists.

43 Dr Fidge says that AHPRA determined that a practical refusal reason existed in relation to his request and that, contrary to s 24 of the FOI Act, it did not engage in a request consultation process. For this reason, Dr Fidge contends AHPRA's decision was infected by error and the NHPPC should not have held that his review application lacked substance.

44 In that context, the NHPPC submitted that the decision of AHPRA under s 17 of the FOI Act was not a decision under s 24 of the FOI Act and for that reason a request consultation process was not necessary.

45 Dr Fidge's argument that AHPRA was required to undertake a request consultation process fails insofar as it relates to AHPRA's decision that s 17(1) of the FOI Act did not apply.

46 Collection Point makes clear that whilst some of the considerations in ss 17(1) and 17(2) of the FOI Act overlap they are separate and distinct decisions. The decision that s 17(1) does not apply is not a decision that meets the terms of s 24AA(1) and so is not a decision to which s 24 applies. It is therefore not a decision which requires a request consultation process.

47 The position is, however, different in relation to a decision that s 17(2) of the FOI Act applies. That is in terms a decision that compliance would 'substantially and unreasonably divert the resources of the agency from its other operations'. A decision under s 17(2) is, in my view, a determination that a practical refusal reason exists within the meaning of s 24AA(1)(a)(i). In this regard, I do not accept the submission of the NHPPC that s 17(2) should be construed as a separate and distinct power to refuse access to a document which, whilst it employs the same language as s 24AA, does not fall within the definition in that section.

48 The submissions of the NHPPC focussed on the opening words of s 24AA(1) emphasising that the definition of a practical refusal reason is 'for the purposes of s 24'. It was said therefore, that this did not extend to the same language where it was employed in s 17(2). In effect, on the NHPPC's construction, a decision under s 17 is completely separate from a decision under s 24.

49 However, it is plain that the definition of a practical refusal reason applies in s 17: see s 17(1)(a). The opening words of s 24AA(1) do not lead to the result that a decision under s 17(2) is not a finding that a practical refusal reason exists, but rather a drafting device which shows that the requirements in s 24 are conditioned upon the existence of a practical refusal reason.

50 If, as I have held, Dr Fidge is right that there was a requirement to consult with him in relation to any decision under s 17(2) of the FOI Act does it follow that there was an error in determining that his NHPPC review application was lacking in substance? Ultimately, the answer is no, because each of the NHPPC decision, the initial decision and the internal review decision only rely on s 17(2) in the alternative. If Dr Fidge's NHPPC application was bound to fail because there was no basis on which to set aside the decision that s 17(1) did not apply, then his NHPPC review application lacked substance and there was no error in the NHPPC decision.

51 As indicated above, Dr Fidge relied on a number of other grounds for his contention that the NHPPC decision was amenable to judicial review. In light of my conclusions above I only consider those grounds which relate to the decision that s 17(1) did not apply.

52 Dr Fidge contended the NHPPC decision was unreasonable because the information he sought must exist and be retrievable from AHPRA's computers.

53 Dr Fidge will demonstrate legal unreasonableness if having regard to the statutory context the decision of the NHPPC 'lacks an evident and intelligible' justification'.[9] He has failed to do so.

54 The information before the NHPPC on review consisted, relevantly, of:

(a) the emails of Mr Reghenzani, Ms Chen and Ms Fowler;

(b) the initial decision;

(c) Dr Fidge's grounds for review of the initial decision;

(d) the internal review decision;

(e) Dr Fidge's NHPPC review application; and

(f) AHPRA's letter.

(a) AHPRA's financial systems do not report on training by subject area;

(b) to produce a document meeting the request would require 'manual intervention ... necessitating analysis of individual receipts or invoices in order to categorise them according to a new and previously unreported-on taxonomy'; and

(c) that as a result, s 17(1)(c)(i) of the FOI Act did not apply;

were plainly open on the materials before the NHPPC. Those findings were expressed in the letter of 12 May 2023 as preliminary views but incorporated by reference in the NHPPC decision.

56 Dr Fidge's allegation of unreasonableness, insofar as it rose above mere assertion that information must exist, rested on the contentions made in his grounds for internal review and essentially repeated before me in oral argument that:

(a) there are references in AHPRA reports to various training programs. Invoices must exist for those training programs and the amounts paid for them must have been recorded on the computer system; and

(b) AHPRA itself acknowledges that it records 'Staff development and amenities' as an aggregated item in its annual report.

57 Neither of the matters in (a) or (b) of the previous paragraph[10] points to the unreasonableness of the findings made by the NHPPC set out above. Dr Fidge fails to grapple with the fact that his request is a request for a breakdown of training expenditure by reference to a previously unused taxonomy. The findings of the NHPPC as to the applicability of s 17(1) of the FOI Act were open. In the absence of any evidence or submission pointing to the incorrectness of that finding, Dr Fidge's NHPPC review application lacked substance. As a consequence the contention that the NHPPC decision was unreasonable cannot be sustained.

58 Before me Dr Fidge indicated that he no longer wished to rely on many of his grounds. For completeness and because it was not entirely clear which grounds were still pressed, I note the following in relation to matters relevant to that aspect of the NHPPC decision referable to s 17(1) of the FOI Act:

(a) The NHPPC did provide adequate reasons. I would reject ground 3 in the Originating Motion;

(b) The decision was not made for an improper purpose. Dr Fidge did say this ground was not pressed;

(c) There is no evidence the NHPPC was biased. I reject ground 6 of the Originating Motion;

(d) The decision did not offend 'the intent of the Australian Government' or the objects of the FOI Act. I reject ground 7 of the Originating Motion;

(e) The NHPPC decision was not 'negligent, misleading or deceitful' or in bad faith. I reject the assertions in paragraphs 6, 7, 18 and 26 to 29 of Dr Fidge's Outline of Submissions;

(f) The decision did not disregard relevant considerations because the information and computer records 'must exist'. I would reject the submissions in paragraphs 10 to 19 of Dr Fidge's Outline of Submissions for the reasons set out above; and

(g) The NHPPC decision did not misconstrue s 17(1) of the FOI Act. I would reject the submissions in paragraphs 20 to 22 of Dr Fidge's Outline of Submissions.

59 In the circumstances, Dr Fidge's application for judicial review should be dismissed.

60 During the course of the hearing Dr Fidge accepted that if his application was unsuccessful he should pay costs.

[1] See Heath Practitioner Regulation National Law (Victoria) Act 2009 (Vic) s 4.

[2] Health Practitioner Regulation National Law (Victoria) s 215; Health Practitioner Regulation National Law Regulation 2018 (Vic) rr 14(d), 15.

[3] Russel Island Development Assoc Inc & Dept of Primary Industries & Energy (1994) 33 ALD 683, 692.

[4] [2013] FCAFC 67 (Besanko, Bromberg and Dodds-Streeton JJ).

[6] Ibid [43]-[44], [49] and [52].

[7] [2019] VSCA 298.

[8] Ibid [134] (Tate, Whelan and Kyrou JJA).

[9] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76].

[10] There was no evidence before me of the matters asserted by Dr Fidge in paragraph 56(a) but for the purposes of this judgment I have assumed their correctness.