Ugur v Australian Human Rights Commission

REASONS FOR JUDGMENT 1 On 19 July 2010 Mr Ugur commenced proceedings in this Court seeking an extension of time in which to challenge a decision of the Administrative Appeals Tribunal ("the AAT") constituted under the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"), given on 26 February 2010. The decision of the AAT responded to an application for review of a decision made by the Australian Human Rights Commission ("the AHRC") not to provide particular documents to Mr Ugur under the Freedom of Information Act 1982 (Cth). The AAT identified the nature of the application with which it was required to deal in the following way: 1. Mr Haci Ugur applies under the Freedom of Information Act 1982 (Cth) (the Act) for review of a decision made by the Australian Human Rights Commission (the HRC), in relation to his request for a copy of his "personal files". 2. In March 2009, the HRC released a number of documents in answer to Mr Ugur's request. Twenty-one had parts deleted. The HRC contends that those deletions were made because the documents were exempt from disclosure, because they contained personal information about HRC employees or third parties and/or information irrelevant to Mr Ugur's FOI request. 3. Mr Ugur contends that the HRC failed to release all documents he had requested. He contends that the HRC's claim to have conducted an adequate search was "entirely fabricated". 4. The issue I am required to determine is whether the decision not to release documents to Mr Ugur on the ground that they do not exist, and to release certain other documents with deletions, is the correct and preferable decision. 2 The AAT decision also recorded that on the day appointed for the hearing before it (11 February 2010) Mr Ugur requested a three month adjournment which was refused. The AAT decision said: 25. On the day of the hearing for this matter, 11 February 2010, Mr Ugur requested a three-month adjournment. That application was refused. I was unable to give reasons for that decision as Mr Ugur, who was apparently unhappy with that decision, interrupted my delivery. I therefore set out in these Reasons why I decided to accede to that request. 3 Thereafter, detailed reasons were given for refusal of the adjournment. Those reasons responded to a number of arguments advanced by Mr Ugur in support of his application for an adjournment, including written submissions provided by him in support of that application. Thereafter the AAT addressed the substantive issues for determination before it, having first recorded the following: 54. After being advised that his application for adjournment had been refused, Mr Ugur elected not to make any further submissions. His written and oral submissions in support of his adjournment application touched on some issues raised in his substantive application, and I have taken them into account in my decision. 4 Twenty-one documents had been released by the AHRC to Mr Ugur with deletions. Each of those documents was examined by the AAT in their redacted and unredacted form. The AAT decision recorded: 59. After examining each document in redacted and unredacted form, I conclude, for the reasons that follow, that they were either exempt documents or contained material irrelevant to Mr Ugur's request. 5 Detailed reasons for this conclusion were then set out. 6 Then the AAT dealt with an allegation by Mr Ugur that the AHRC had failed to conduct an adequate search for the documents he requested. The AAT decision recorded: 76. The HRC bears the onus of establishing that all reasonable steps have been taken to find the documents requested … and: 79. It does not fall to Mr Ugur to establish that all reasonable steps were not undertaken but rather to the HRC to prove that they were. Nonetheless, it is necessary to consider Mr Ugur's arguments on this point. 7 The AAT then recorded the following: 82. In written submissions, Mr Ugur contended that the HRC's claim to have conducted an adequate search in relation to his 2007 FOI request was "entirely fabricated". He alleged that the HRC destroyed files and that its witnesses gave untruthful evidence. He tendered a copy of a letter to the Chief Justice of the Federal Court in which he alleged that the AAT had "some agreement" to "cover up the HRC's misconduct" and went on to allege that some members of the Federal Court were also implicated. 83. Mr Ugur has not provided a shred of evidence to support these arguably scandalous claims. Whether the doctrine of issue estoppel applies in proceedings before the AAT is not settled. Absent fresh and cogent evidence to support Mr Ugur's claim that the search undertaken in relation to his 2007 FOI request was inadequate, in my view no useful purpose would be served in revisiting that issue. 8 Nevertheless, as the AAT made plain, its rejection of this part of Mr Ugur's arguments did not depend simply upon rejection of his allegations concerning the conduct of the AHRC. Rather, the AAT was satisfied that the steps set out in the decision under review (and in an earlier decision which was itself being reviewed by the decision-maker) disclosed that adequate searches had been conducted. Accordingly, the AAT expressed the following conclusion: 89. Conclusion Having reviewed the documents released and the steps undertaken by Mr Hely and Ms O'Brien to locate them, I am satisfied that all reasonable steps have been taken to find the requested documents. In doing so, I have taken into account a number of factors, including: The significant number of documents released The diverse and different types of documents located The range of sources from which the documents have been obtained The fact that both electronic and physical records were undertaken The fact that two searches were undertaken and by different people The fact that the search was conducted across all sections within the HRC 90. For these reasons I am satisfied that all reasonable steps were undertaken to locate the documents the subject of Mr Ugur's request. 9 Immediately thereafter the AAT recorded that the decision under review was affirmed. 10 Subject to a further difficulty facing Mr Ugur, which is considered hereunder, if he wished to challenge the decision of the AAT he was required either to institute an appeal under s 44 of the AAT Act within 28 days of being given the decision of the AAT or make an application in accordance with s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") within 28 days of the decision. In an affidavit filed on 19 July 2010 in support of his application for an extension of time, Mr Ugur asserted that he did not receive the decision of the AAT (which was dated 26 February 2010) until 11 March 2010. It is apparent that, even making allowance for this in his favour, his application for an extension of time is still well outside the period allowed to him, in the absence of an extension of time being granted by the Court. Mr Ugur's explanation was that he attempted to file his application on 9 April 2010 but was informed that he would need to apply for an extension of time. He said that he went to the registry of the Court on 3 May 2010 and was again advised to make an application for an extension of time. In the circumstances described by Mr Ugur, and accepting his statements about those matters, it was incumbent upon him, at least, to give a cogent explanation for the delay from 9 April 2010 until 19 July 2010. 11 Mr Ugur provided to the registry a draft notice of appeal under the AAT Act dated 19 July 2010 together with a draft application under the ADJR Act which bore the date of 7 April 2010. Each of those documents referred to a nine page attachment containing a series of complaints about the conduct of the proceedings in the AAT including the accusations that Mr Ugur had been denied natural justice and procedural fairness, that the decision of the AAT was induced or affected by fraud, that both the AAT and the AHRC intended to prejudice his rights, that the AAT was biased against him and that the AAT had acted in bad faith. There were also accusations in this document to the effect that Mr Ugur is being "monitored" by the Government and that he has been subjected to "cruel and inhuman treatment without being formally charged and without being granted a fair trial". The character of those accusations inevitably diverts attention from the question of whether, nevertheless, there might somewhere appear some legitimate foundation for an appeal under the AAT Act on a question of law, or for an application for review under the ADJR Act on one of the grounds permitted by that Act. That is a matter which I must attempt to assess by reference to the other material filed by Mr Ugur in support of his application for an extension of time and the contribution which he made at the hearing of that application. 12 On 8 October 2010 Mr Ugur filed a further document. That document, regrettably, further obscures rather than clarifies the position. It contains a rather rambling series of accusations against a variety of persons and government bodies. The matters which appear conceivably relevant to Mr Ugur's application for an extension of time consist only of assertions, despite the findings of the AAT, that there were (i.e. there must have been) further documents for which the AHRC did not search or which it did not provide to him. Those conclusions on Mr Ugur's part cannot be given the evidentiary status which would be required to support his application for an extension of time, or any appeal or proceedings for judicial review if such an extension of time was granted. They are only assertions on his part however firmly he might believe the conclusions to which he has come. 13 On 19 November 2010 Mr Ugur filed further written material. In this document Mr Ugur's explanation for the delay in filing his application for an extension of time most relevantly included the following: • I was a full time student and I was attending classes (extra course) at night. This included assignment and exams up to July 2010. • During this time I was also monitored by certain areas of government and abused constantly. In May and June 2010, the level of monitoring and abusive behaviour by Government representative (Monitoring Officer of the Government) has increased. It is my understanding that this being done it prevents me from accessing to the court and my rights to appeal are thwarted. 14 Thereafter, he made a variety of complaints about the procedures followed by the AAT suggesting, amongst other things, that he was refused a reasonable request for an adjournment and a reasonable opportunity to present his case. I will accept, in Mr Ugur's favour, that a sufficiently focussed and properly particularised complaint of a denial of procedural fairness or natural justice might raise a question of law and a ground for judicial review. I shall deal, in due course, with this particular complaint. Mr Ugur's other assertions do not fall into the same category. They appear to me to be no more than complaints which (so far as they are relevant to the present issues for consideration at all) involve the underlying proposition that there must have been more material available to the AHRC than it disclosed to him and that the AAT was wrong to have concluded to the contrary. No effort has been made by Mr Ugur to come directly to grips with the reasoning of the AAT. Indeed, there appears to be no challenge to the detailed reasons given for upholding the specific redactions in documents which were provided. The focus of Mr Ugur's attention seemed to be on the proposition that there is a body of material which has not been disclosed at all. 15 On 14 December 2010 Mr Ugur filed a substantial document entitled "Submissions". For the most part this document consisted of allegations of improper conduct of various kinds by the representative of the respondent, the member of the AAT whose decision he desires to challenge and a number of judges of this Court. Regrettably, the submission was generally focussed on matters which are well removed from issues which require consideration on the present application. Most of the submission was devoted to suggesting improper behaviour by a number of people. The accusations were immoderate and not supported by reference to particular facts. Rather, they represented a series of stated conclusions. I will accept in Mr Ugur's favour that he has strongly held views, even if the foundation for them is not readily apparent. However, an absence of malice, accepting that also in his favour, does not excuse the use of the present proceedings as a vehicle for alleging fraudulent behaviour, illegal conduct, abuse of judicial power, exercise of power in bad faith, fabricating false evidence or corrupt conduct, as he has done. The fact that Mr Ugur is an unrepresented litigant provides no licence to ignore, or fail to observe, reasonable standards of behaviour in relation to proceedings in the Court (see Bahonko v Sterjov (2008) 166 FCR 415 at [6]). His submissions did his case a disservice. The most charitable thing to say about them is that to the extent that they were not relevant I have put them to one side and attempted to concentrate upon matters which might be relevant, where they could be identified. 16 On the question of delay in filing his application, Mr Ugur's principal argument, in the document filed on 14 December 2010, was that he was (originally) only one day late in attempting to file his application and that it would be an "injustice" if his application was refused. Nothing was advanced in this document which would explain, or justify, the further delays to which I earlier referred, except the further passing suggestion that in May and June 2010 he was subject to increased monitoring. 17 The matter had been fixed for hearing on 16 December 2010. Regrettably, when the appointed hearing day arrived it became clear that the Court had failed to arrange for an interpreter to be present to assist Mr Ugur. It became necessary to adjourn the proceedings to a later date. The matter was re-fixed for hearing on 17 February 2011. 18 On 15 February 2011 Mr Ugur delivered a further document to the Registry dated 14 February 2011. In this document he complained (as he had done in his other contributions) of being "monitored" by the Government and suggested that he was the object of constant surveillance by a security officer, living in his building, who was paid by the Government. He attached some photos (some as prints and some on a USB stick) which were said to illustrate the effects on him of some form of electronic intrusion which caused changes to his appearance and which were said to evidence his alleged abuse by monitoring officers of the Government. Those photos seemed to have no apparent relevance to the present application. As I informed Mr Ugur at the oral hearing, I did not inspect them. The other matters referred to in this letter do not have any bearing on the matters which arise for decision in the present proceedings. 19 At the hearing of the application itself, on 17 February 2011, Mr Ugur spent a good deal of time reading from his earlier submissions of 14 December 2010 and referring to his latest communication of 14 February 2011. The only matters which he added, by way of oral submission, were to complain about orders made by Edmonds J on 16 September 2008 (which will be referred to again later) and to say that he had forgotten until now to provide specific evidence that he was subject to an increased level of monitoring in May, June and July 2010 which delayed the filing of his application. The oral submissions did not add materially to Mr Ugur's earlier contributions. 20 The respondent's case was set out in a comprehensive written submission filed on 18 November 2010, to which Mr Ugur responded in his own submissions of 14 December 2010. A number of detailed reasons were advanced, in the respondent's submissions, as to why an extension of time should not be granted. The grounds of opposition relied on matters both of a technical nature and of substance. It has not been necessary to deal with some matters of an essentially technical or procedural nature which were relied upon. 21 When an application for an extension of time is sought, it is normally necessary to provide a sufficient explanation for the delay, as well as to consider whether any prejudice to an opposing party would be involved if an extension of time was granted. In addition, a further question to be examined is whether there would be reasonable prospects for success if an extension of time was granted or whether, on the contrary, granting an extension of time would prove ultimately futile. I am not satisfied that Mr Ugur has satisfied any of the tests for an extension of time. 22 First, there was no sufficient explanation for Mr Ugur's delay in finally bringing an application to the Court. Even without the benefit of any evidentiary support for his explanation, the statement made in his written material filed on 19 November 2010 (set out earlier at [13]), that his studies, assignments and examinations up to July 2010 were a reason for delay, makes it apparent that lack of attention to filing the necessary material in this Court was the result of Mr Ugur's own choices and his allocation of personal priorities. I am not satisfied that this, or any other, reason advanced by Mr Ugur meets the test that a sufficient explanation of delay be provided. Nor may it be said, in my view, that there would be no prejudice to the respondent in having to deal with further litigation about the matter if that was not otherwise justified. 23 Although it has played no part in reaching the conclusion that no acceptable explanation for the delay has been provided, Mr Ugur must be well aware of the need to comply with the times fixed for instituting proceedings in this Court, and the consequences which may follow if those requirements are not observed. Proceedings instituted by him have been dismissed on previous occasions for reason of his failure to comply with such time limits, and with directions made by the Court (see Ugur v Police Service of New South Wales [2004] FCA 1032 - Hely J, 6 August 2004; Ugur v New South Wales Police Service [2005] FCA 48 - Emmett J, 20 January 2005; Ugur v Human Rights and Equal Opportunity Commission [2008] FCA 1461 at [46]-[47] - Jagot J, 26 September 2008). 24 Secondly, for the reasons which follow, I am not satisfied that there would be any utility in allowing him an extension of time so that he could pursue a challenge to the decision of the AAT. On the contrary, I am satisfied that there are no prospects that such a challenge could succeed and that it would be a considerable waste of judicial and administrative resources to permit the matter to go forward. 25 I referred earlier to the explanation given by the AAT for the decision which it reached about Mr Ugur's application to it. I can see no error of law arising from the terms of the decision itself. Nor can I see any error of law arising from the procedures which were followed. The most cogent complaint that Mr Ugur made in his present application does not concern the terms of the decision but his allegation that he was denied natural justice. The focus of that complaint appears to be that Mr Ugur was refused an adjournment of the proceedings, after which he made no further contribution to them, although he apparently remained present. As I have already mentioned, detailed reasons were given by the AAT for refusing the adjournment Mr Ugur had sought. The procedure of the AAT is within the discretion of the AAT (see s 33(1)(a) of the AAT Act). The AAT is required, generally speaking, to proceed with expedition (s 33(1)(b) of the AAT Act). Although s 39 of the AAT Act required that Mr Ugur be given a reasonable opportunity to present his case, such an opportunity was afforded to him. The decision of the AAT recorded the following matters: 25. On the day of the hearing for this matter, 11 February 2010, Mr Ugur requested a three-month adjournment. That application was refused. I was unable to give reasons for that decision as Mr Ugur, who was apparently unhappy with that decision, interrupted my delivery. I therefore set out in these Reasons why I decided to accede to that request. 26. Mr Ugur argued that an adjournment should be granted because first, he had been unable to obtain legal representation; second, he was without an interpreter; third, a foreshadowed affidavit from the head of the HRC's legal section had not been provided; fourth, the Tribunal would be unable to assess the adequacy of the search undertaken by HRC as seven officers, who he believed played a critical role in that search, were not available for questioning. 26 A detailed discussion of those matters followed, until the AAT concluded: 49. Mr Ugur filed his application for review in July 2009. He has been on notice of the date allocated for hearing for over three months. Prior to the hearing, he failed to apply for an adjournment; ask the Registrar to provide an interpreter; or take steps to arrange for those witnesses he believe [sic] critical to this matter to give evidence. He has not explained why he left these requests until the date of hearing. 50. For the reasons set out above, I am satisfied that Mr Ugur would not be denied a reasonable opportunity to present his case if the matter were to proceed without the benefit of an interpreter or legal representation. 27 I can see no error of law arising in relation to the exercise of the discretion of the AAT to continue with the hearing and decline Mr Ugur's application for an adjournment. Having decided that the proceeding before it would not be adjourned, there was nothing to prevent the AAT continuing to deal with the matter either if, as Mr Ugur chose to do, he made no further contribution to the proceedings. It is clear from the decision of the AAT that Mr Ugur's written and oral submissions were taken into account and that the AAT, in any event, evaluated his case by examining whether it should be satisfied about the propriety and adequacy of the steps taken by the AHRC in reaching the decision which was challenged by Mr Ugur. In this respect, also, I can see no error of law arising from the procedures adopted by the AAT or from any decision of the AAT with respect to, or consequent upon, those procedures. 28 As a consequence of those various conclusions there is no prospect, in my view, based on the material before the Court, and making full allowance for Mr Ugur's contribution where it was relevant, that an appeal or an application for judicial review could succeed if an extension of time was granted. It would, therefore, be futile to grant the present application. 29 There is a further difficulty for Mr Ugur which, in addition to and independently of the grounds already given for refusing his application for an extension of time, must lead to the same result. On 16 September 2008, in proceedings between Mr Ugur and the respondent (then known as the Human Rights and Equal Opportunity Commission) Edmonds J, after dismissing a notice of motion filed by Mr Ugur and an appeal to the Court from a judgment of the Federal Magistrates Court of Australia, made the following order: The Registry of this Court not accept for filing any other document or process either in this proceeding or any other proceeding hereafter commenced by the appellant against the Human Rights and Equal Opportunity Commission or the Commonwealth without the leave of a judge of this Court. 30 That order was authorised by O 21 of the Federal Court Rules. Order 21 r 3 required an application seeking leave to commence the present proceeding. No such application was made. Order 21 r 5 states that a proceeding not be instituted or continued unless the Court is satisfied that the proceeding is not an abuse of process and there are prima facie grounds for proceeding. Apart from the fact that no application was made by Mr Ugur seeking leave to commence the present proceedings (which should not have been accepted by the Registry), I am not satisfied that there is any prima facie ground for the proceeding which would justify its continuation. Even upon the view that Mr Ugur's application for an extension of time is properly before the Court because it was accepted by the Registry (a question which I do not need to decide) O 21 r 5 represents a bar to continuation of the proceedings unless I dispense with it, and its requirements, under O 1 r 8. I see no proper ground upon which I should do so. It follows that, for this additional reason also, Mr Ugur's application for an extension of time in which to institute a challenge to the decision of the AAT made on 26 February 2010 should not be further entertained. 31 The application for an extension of time must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.