The applicant was concerned that there were a number of decisions given to him in relation to this matter. He first of all referred to a decision of Ms Elizabeth Free, then of Mr Daniel Bui, and finally of an internal review decision of Ms Kathy Maikousis.
It should be noted that in the decision of Mr Bui, he refused access to documents on grounds of exemption within the FOI Act itself. However, Ms Maikousis, who internally reviewed the decision of Mr Bui, made it clear in her decision that access was refused on the basis that the request was covered by s 6(b) of the Act. In my view, it makes very little difference in a review hearing such as this as to the reasoning used by the original decision-maker or the internal review decision-maker. That is, it matters little as to whether that reasoning was correct or otherwise. This Tribunal hears these types of matters "de novo". In any event, it is clear in the FOI Act itself that it is the internal review decision that can be reviewed. The initial decision cannot be reviewed. Mr Seaman stated that he seeks review of the initial decision; that cannot be right because that decision is not subject to review by this Tribunal. Before the jurisdiction of this Tribunal can be activated in freedom of information proceedings, there must be an internal review (see s 51(1) and (2) of the Act).
Mr Seaman also made reference to an earlier matter in which he was involved. It was a matter where he sought the same document which he is now seeking from Victoria Legal Aid. Mr Seaman stated that at the directions hearing conducted by Deputy President Coghlan, a jurisdictional point was taken and the Deputy President held there was jurisdiction. It is unclear as to what was argued before the Deputy President but what is clear is that the case to which he refers related to a freedom of information request made against Victoria Legal Aid which is clearly an agency of the government. Under those circumstances, that is a very different situation to the one here. Therefore, I believe the application herein should be dismissed.
Mr Seaman has asked that I deal with his statement in reply.
Mr Seaman said that s 5 of the Commonwealth Act makes the situation clear and that if the Victorian Parliament had wished to make the decision clear, it would have. However, in my view, the position on the authorities is quite clear that the Freedom of Information Act does not relate to judicial functions. Section 6(b) makes that clear and, in any event, as a matter of legal history, the judges have always had control of the affairs of Court.
[2]
The other matter that is raised by the applicant is the time that has been taken by the respondent to serve documents. It is clear that the respondent served documents out of time. However, although invited by myself, Mr Seaman did not ask for an adjournment in the hearing of this proceeding and it was clear that he was not embarrassed in any way, or had difficulties as a result of late service.
Parties
Applicant/Plaintiff:
Seaman
Respondent/Defendant:
Department of Justice
Cases Cited (3)
Seaman v Department of Justice (General) [2009] VCAT 1444 (24 July 2009)
The case law makes it clear that a Court transcript is a document of the Court.
In the case of Loughnan (Principal Registrar, Family Court of Australia) v Altman[1992] FCA 580; (1992) 111 ALR 445 at p 6 it was there stated by the Full Court of the Federal Court, Black CJ, Sweeney and Lee JJ :