Boehm, E.L. v The Commonwealth Ombudsman

Re: ERVIN LAJOS BOEHM
And: THE COMMONWEALTH OMBUDSMAN
No. VG332 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Woodward J.

CATCHWORDS

Administrative Law - application for leave to appeal out of time against decision of Administrative Appeals Tribunal - Freedom of Information Act request - principles to be applied.

Administrative Appeals Tribunal Act 1975 s.44

Freedom of Information Act 1982 s.40(1)(d)

HEARING

MELBOURNE

#DATE 19:11:1986

Applicant appeared in person.

Solicitor for the respondent: Mr R. Huttner, Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondent's taxed costs.

(Note: Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.)

JUDGE1

This is an application for an extension of time within which to file a notice of appeal from a decision of the Administrative Appeals Tribunal.

The decision sought to be appealed from was one in which the Tribunal, constituted by Jenkinson J, found that a certain document in a file of the respondent's was exempt from production under the Freedom of Information Act 1982.
In the circumstances of the present case there are, I believe, four matters which I need to consider in the exercise of my discretion. The first is the reason advanced by the applicant for his delay in appealing - which in this case involved a period of some 13 months. The second is the applicant's prospect of success in his appeal if he is permitted to pursue it. The third is the harm which would be suffered by the applicant if he were prevented from pursuing a successful appeal. The fourth is any possible prejudice to the respondent caused by the delay in launching an appeal.
The last question can be disposed of readily. The solicitor for the respondent was unable to suggest any reason why the delay in itself should cause any problems for his client. His concerns were simply the time and expense involved in having to resist yet another action by the applicant.
I heard evidence of the reasons for delay from both the applicant (who appeared in person) and from several witnesses called by the respondent. Having carefully considered that evidence I make the following findings.
The applicant has been pursuing for some years an action against the Commonwealth Government, which he began in the High Court but which was transferred to the Federal Court. Apparently in aid of that action, he has sought documents under the Freedom of Information Act 1982 from a number of Commonwealth Departments. Because he had previously referred his complaint against the Commonwealth to the Ombudsman, and the Ombudsman has investigated it, he has also sought documents from that authority. In a number of cases he has not been satisfied with the response of the department or authority and has appealed to the Administrative Appeals Tribunal ('the AAT'). He has conducted each of those appeals himself, and has met with some success but not complete success.
He had a solicitor acting for him in the proceedings transferred from the High Court to the Federal Court. Following a discussion with that solicitor, Mr Braun, of Harrison Braun and Co, in about March of 1985, Mr Braun wrote to the Legal Aid Commission of Victoria to see if he could get the aid already arranged for the main action extended to cover appeals from the several AAT decisions which had been given by then. It seems that such an extension was approved, at least in principle, shortly before the applicant decided that he would like to change solicitors. He had a conversation with a solicitor at the firm of Madden Butler Elder and Graham ('Madden Butler') and signed some form of authority. He told Mr Braun that he was changing his solicitor and no longer wished him to act, but he did not tell him which firm he had chosen. I prefer Mr Braun's evidence on this point to that of the applicant - who said he did give Mr Braun the name of Madden Butler.
The employment of Madden Butler was conditional upon legal aid being available; and the Legal Aid Commission will not approve a change of solicitors unless it is consulted and consents.
The applicant left on an overseas trip to Indonesia, Singapore, India and Thailand on about 28 June 1985.
The AAT had completed its hearing of the particular appeal against the Ombudsman's decision in December of 1984. Its decision was still reserved when the applicant left for overseas; in fact it was delivered a month later, on 30 July 1985.
I am satisfied that the applicant went away - intending to be away for some months, though perhaps not as long as in fact he was - without giving instructions to anyone concerning the pending decision.
It is clear that he gave no instructions to Mr Braun because he had intended to terminate his retainer. There was written evidence before me from the solicitor at Madden Butler who had seen the applicant that the firm had never been finally retained by the applicant. In fact the Legal Aid Commission, far from approving the applicant's change of solicitors, had first suspended and then cancelled his entitlement to aid because of his overseas trip and his response to a questionnaire arising from it.
In particular, the solicitor from Madden Butler stated that the question of an AAT appeal relating to the Ombudsman had not been mentioned to him by the applicant.
It was Mr Braun who received a telephone call from the AAT about the handing down of the decision in question. He had by then heard from Madden Butler about the proposed handover of the applicant's work but, knowing that the handover was incomplete, took the responsible decision to attend the handing down of the decision in spite of his final interview with the applicant - for whom he obviously still felt some sympathy.
Having read the decision, which was partly favourable and partly unfavourable, he tried to communicate with the applicant at the only address he had left behind - "Poste restante, Singapore" - which had been given to him by Madden Butler. But apparently the applicant had moved on and did not receive the letter. There was nothing more that Mr Braun could have done.
The applicant returned to Australia in March 1981 and took some time to find out what had happened about his legal representation and to recover his papers from Mr Braun through the Legal Aid Commission. He filed this application on 12 September 1986.
In all the circumstances, and bearing in mind that the applicant was reasonably familiar with the workings of the AAT and the provisions of the Administrative Appeals Tribunal Act 1975 concerning appeals, I can only find that he was very careless of his rights when he left Australia. Even if he believed, as he says, that Madden Butler were working for him, he should have left clear instructions about the outstanding decision and his desire to appeal if unsuccessful. Making all due allowance for the stress he felt at the time he left, and illness which he claims to have experienced while away, I am unable to find that the applicant's explanation for delay is such as to provide a proper basis for leave to appeal so far out of time.
There are other reasons why the application should be refused. Jenkinson J has carefully considered the relevant issues and has found that the document now in question - a note taken by the Ombudsman's secretary of a telephone call from a person volunteering information and opinions - was an exempt document because its disclosure under the Freedom of Information Act 1982 "could reasonably be expected to ... have a substantial adverse effect on the operations" of the Ombudsman's office (see s.40(1)(d)). His Honour found that the document included an opinion expressed by the caller "which might confidently be expected to excite in the applicant ill-will towards the caller", but that the caller was "a member of a class of persons from whom the Ombudsman can expect to receive information useful to him in conducting his investigations". He went on to say,

"If access were granted, I do not doubt that the caller would let other members of the class know what had happened, and that in consequence the flow of unsolicited, but often very useful, information from members of that class to the Ombudsman would be substantially diminished."

Later his Honour said,

"I am, however, persuaded that disclosure of a document such as this could be expected to have a substantial adverse effect on the proper and efficient conduct of the Ombudsman's operations. The Ombudsman's secretary's recording of the caller's observations was prudent and sensible. What the caller was recorded as saying disclosed his attitude to the particular investigation, to which it appeared that he was offering to make a contribution. The secretary could reasonably have expected that what she recorded would be useful to the Ombudsman, or to whichever of his officers subsequently dealt with the caller, in formulating an appropriate response to the caller's expression of interest in the investigation. But the recording of the caller's observations would have been unlikely to have served any other purpose in the conduct of the Ombudsman's operations. The caller's gratuitous opinions, which the secretary recorded were irrelevant to the investigation."

I am unable to see that, in making findings such as these, Jenkinson J was doing anything other than finding facts and asking himself whether those facts brought the document in question within a particular category of exempt documents provided for in the Act. I can see no question of law involved and, perhaps understandably, the applicant was able to point to none. Since an appeal only lies on a question of law (see the Administrative Appeals Tribunal Act 1975 s.44) I do not believe that an appeal by the applicant would have any real prospect of success.
Finally, it is clear from the passages of Jenkinson J's reasons for decision just cited that the document in question has no direct bearing on the applicant's action in the Federal Court. The receipt of it will do no more than give him the name of someone outside the relevant Government authority who has volunteered an adverse opinion of him and the substance of that opinion. This is not the stuff of which worthwhile appeals concerning the Freedom of Information Act 1982 are made.
The application will be dismissed with costs.

[1986] FCA 548

19 NOVEMBER 1986