Bienstein and Family Court of Australia

[2006] AATA 385

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 385

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/1055

GENERAL ADMINISTRATIVE DIVISION

Re:       HELEN BIENSTEIN

Applicant

And:FAMILY COURT OF AUSTRALIA

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             10 April 2006

Place:            Melbourne

Decision:For the reasons given orally at the hearing the Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Senior Member

FREEDOM OF INFORMATION - documents relating to the case management of applicant’s file ‑ whether documents are of an administrative nature

Freedom of Information Act 1982 ss 5, 14

Fingleton v The Queen [2005] HCA 34

MacKeigan v Hickman (1989) 2 SCR 796

REASONS FOR DECISION

10 April 2006  G.D. Friedman, Senior Member

1.      Ms Bienstein sought access to all documents relating to the case management of her Family Court matters on file BIENSTEIN ML7725 of 1991 and related appeal actions.  On 18 September 2003 the respondent affirmed a decision dated 8 September 2003 to refuse access because the requested documents were not administrative in nature and were not subject to the Freedom of Information Act 1982 (the FOI Act).

2.        The issue before the Tribunal is whether the documents to which access has been refused are administrative in nature.

3.        Documents in relation to the case management of Ms Bienstein’s matters before the Family Court, including her appeals, are held in various matter (registry and appeal) files maintained by the respondent.  In material submitted to the Tribunal the respondent stated that the matter files contain details of listings, and answers to specific questions.  The documents have been made available by the respondent for inspection by Ms Bienstein.

4.        The respondent stated that minutes of case management meetings are not routinely retained.  The only minutes located were for the period 1997 and 1998, and these did not contain any reference to Ms Bienstein.  Similarly, records of Pending Pre-hearing Conference and/or Trial Pools were held electronically, updated daily and printed at various times, but copies were not retained.  Information held on file is maintained in a different format in daily law and similar lists, some of which may contain Ms Bienstein’s name.  Outcomes of hearings are maintained on matter files.

5. The respondent stated that it does not keep electronic copies of document files in proceedings. It identified 644 pages of documents that may fall within Ms Bienstein’s request, and these are in electronic form. The respondent stated that Ms Bienstein, as a party to proceedings before the Court, has been informed that she has the right under the Family Court Rules to inspect and make copies of any of the documents. The respondent has also offered to grant Ms Bienstein access to relevant documents under s 14 of the FOI Act, which enables an agency to give access to documents (including exempt documents) otherwise than as required by the FOI Act.

6. Section 5 of the FOI Act provides:

Act to apply to courts in respect of administrative matters

For the purposes of this Act:

(a)       a court shall be deemed to be a prescribed authority;

(b)the holder of a judicial office or other office pertaining to a court in his or her capacity as the holder of that office, being an office established by the legislation establishing the court, shall be deemed not to be a prescribed authority and shall not be included in a Department; and

(c)a registry or other office of a court, and the staff of such a registry or other office when acting in a capacity as members of that staff, shall be taken as a part of the court;

but this Act does not apply to any request for access to a document of the court unless the document relates to matters of an administrative nature.

7.      In Fingleton v The Queen [2005] HCA 34 Gleeson CJ stated at paragraph 52:

The answer to that question, and to the respondent's argument, requires closer examination of s 10 of the Magistrates Act.  In truth it covers a number of matters closely related to issues of judicial independence.  Sub-sections (1) and (2) of s 10 cover the whole range of matters relevant to the orderly and expeditious exercise of the jurisdiction and powers of the Magistrates Courts, and include the organising of court lists, the allocation of magistrates to particular localities, and the assigning of magistrates to particular work.  Arrangements of that kind are not merely matters of internal administration.  They affect litigants and the public.  Within any court, the assignment of a judicial officer to a particular case, or a particular kind of business, or a particular locality, is a matter intimately related to the independent and impartial administration of justice.  This was the basis of the decision of the New South Wales Court of Appeal in Rajski v Wood, where it was held that the nomination or allocation of a judge to hear a particular case was not justiciable.  As was pointed out in Minister for Immigration and Multicultural Affairs v Wang, where it is the function of a head of jurisdiction to assign members of a court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence.  The same may be said of the capacity to exercise that function free from the threat of civil or criminal sanctions.

His Honour referred to the decision of the Supreme Court of Canada in MacKeigan v Hickman (1989) 2 SCR 796 regarding the limits on the power to investigate the reasons for a decision to assign a judge to a case.

8.      The Tribunal has considered the nature of the documents relevant to Ms Bienstein’s request, and finds that the documents refer to organisational matters such as Court lists and the assigning of judicial officers to particular cases.  As noted in Fingleton, these are matters affecting litigants and the public, and are intimately related to the independent and impartial administration of justice.  They are not documents of internal administration.    

9. For these reasons under s 5 of the FOI Act the Tribunal finds that the relevant documents are not documents that relate to matters of an administrative nature, so the FOI Act does not apply to the request for access to the documents.

DECISION

10.      For reasons given orally at the hearing the Tribunal affirms the decision under review.

I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula          

Associate

Date of hearing:  10 April 2006

Date of decision:  10 April 2006

Advocate for applicant:                Self-represented (not present at hearing)

Advocate for respondent:            Mr N. Wareham, Family Court of Australia