CDJR and Australian Research Council - [2012] AATA 525

[2012] AATA 525

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/1331
Re	CDJR
APPLICANT
And	Australian Research Council
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	9 August 2012
Place	Hobart

The application to reinstate and the application for an extension of time are refused.

[Sgd Ms A F Cunningham]

(Senior Member)

FREEDOM OF INFORMATION – applications for reinstatement and an extension of time – application for review withdrawn by applicant – no demonstrated prospect of success –lengthy time between date of withdrawal and application for reinstatement – applications refused

Freedom of Information Act 1982 – ss 42A(9) and (10)

Administrative Appeals Tribunal Act 1975, ss 29(7), 42(A)

Schramm v Repatriation Commission [1998] 12847A
Rossi Harris v Comcare [2001] AATA 492
Booth v Secretary, Department of Family and Community Services 1998 53 ALD 123
Phillips v Repatriation Commission [2001] AATA 943
Huisman v SDE and Workplace Relations [2005] AATA 885
White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712
Andrews and Australian Research Council 2007 [AATA] 1026

Re S & J Ferguson Ltd and Minister for Arts, Heritage and Environment (1986) ALD 145

REASONS FOR INTERLOCUTORY DECISION

Ms A F Cunningham (Senior Member)

On 6 April 2010 the applicant, filed an application for review of a decision of the Australian Research Council (ARC) with respect to a request under the Freedom of Information Act 1982 (FOI Act). Attached to the decision was a Schedule of Documents for release.
In his application for review, the applicant stated that he had not been provided with access to the Reviewers’ Reports upon which the decision to decline his proposal under the Future Fellowship Scheme was made. The applicant stated that he was not seeking information that would identify the Reviewers’ involved but had requested access to the contents of the Reviewers’ Reports.
On 13 May 2010 the applicant sent an email to the Hobart Registry advising that the ARC had provided him:
“… with a document (recently created) containing the reviewers’ comments extracted from the original evaluation report (the document in question in this case) that was prepared in respect of my funding proposal.
According to the Australian Government Solicitor, Mr Justin Hyland, the new document contains all information word for word extracted from the original documents.
I believe that I got the necessary information/feedback I was seeking for and decided to withdraw my current application at the AAT.
Thank you very much for withdrawing the above referenced case from the AAT”.
Pursuant to the applicant’s request the Tribunal dismissed his application for review on 14 May 2010 and the parties were advised accordingly.
On 15 February 2012 the applicant advised the Tribunal that he had been misled into withdrawing his application. He claimed that he had been informed that all relevant information from the ARC had been provided but now understands that some information was withheld. On 23 February 2012 the applicant made an application for reinstatement or alternatively, an extension of time in which to lodge a new application.
The applications for reinstatement or an extension of time are opposed by the respondent. In the event either is successful, the respondent seeks the transfer of the application for review to the Canberra Registry on the basis that the parties, the respondent’s legal representatives, witnesses and relevant material are all based in Canberra. The applicant opposes the transfer of the matter to the Canberra Registry.
The application for reinstatement is made pursuant to section 42A(9) of the Administrative Appeals Tribunal Act 1975. It is clear from the wording of sub-section 9 that the Tribunal has a discretion with respect to reinstatement where “it considers it appropriate to do so”. The Tribunal considered its discretionary power to reinstate an application which may have been dismissed in error in the decision of Schramm v Repatriation Commission [1998] 12847A. In that decision Deputy President Burns was considering the terminology used in sub-section 42B(10) and held “the Tribunal is of the view that there is nothing in the Act generally or in the words of s42A(10) to suggest that reinstatement was intended to flow automatically upon it appearing to the Tribunal that an application had been dismissed in error”.
After considering the phrase “on its own initiative” appearing in s42A(10) and the phrase “if it considers it appropriate to do so” appearing in s42A(9), Deputy President Burns went on to state that “both phrases strongly suggest that the Tribunal is under no obligation to reinstate in either situation”.
This approach has been followed by the Tribunal on many occasions in its consideration of an application for reinstatement. The Tribunal has declined to reinstate an application where it is demonstrated that it had little prospect of success or there was no jurisdiction to consider the issue. I refer to the decision of re Rossi Harris v Comcare [2001] AATA 492 where Senior Member Webster found that nothing would be gained by reinstating the application which had little prospect of proceeding to a hearing and where it appeared that the Tribunal had no jurisdiction to consider the issue of wrongful dismissal.
Similarly in the decision re Booth and Secretary, Department of Family and Community Services [1998] 53 ALD 123, the Tribunal declined to exercise its discretion pursuant to s42A(10) where no substantive merit of the application could be demonstrated. The line of reasoning in Booth’s decision was followed in Phillips v Repatriation Commission [2001] AATA 943. In the Tribunal’s decision of re Huisman v SDE and Workplace Relations [2005] AATA 885 it was held that the prospects of a successful appeal were relevant to the Tribunal’s consideration of whether it was appropriate in the circumstances of that case to reinstate the application.
The respondent opposed the application for reinstatement and contended that there is no basis for reinstatement pursuant to section 42A(10) as there is no evidence that the application was dismissed in error. It was submitted that the principles relevant to the exercise of a discretion to reinstate an application under section 42A(9) have been developed in cases before the Tribunal and the Courts and include notions of fairness between the parties. The issue is not only what is fair between the parties but also between the applicant and those in a like position. Reference was made to the decision of Deputy President Forgie in White and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1712 where the Tribunal considered the issue of prejudice to the respondent and whether, the application if reinstated, would have merit.
It was submitted that the applicant withdrew the application on the basis that he was satisfied that the document provided by the respondent in May 2010 addressed his request for access to the Reviewers’ comments and opinions. It was contended that the document the applicant now seeks, namely, the advice to the Minister in respect of the applicant’s unsuccessful Future Fellowships Application, does not contain information regarding the Reviewers’ comments.
The respondent submitted that it was not aware of any further documents which relate to the Reviewers’ comments regarding the applicant’s funding proposal. The document now sought by the applicant, does not contain or relate to the Reviewers’ opinions.

DISCUSSION AND FINDINGS

In the applicant’s letter of 11 November 2009 he sought access to the following:
oAll information held by the Australian Research Council (the ARC) relating to the decision made in respect of FT0990251; and
oA copy of the correspondence/email sent to the university on September 11 2009 from staff in the ARC Future Fellowships section informing the university about your FOI request.
At the hearing before the Tribunal convened on 2 July 2012, the respondent’s representatives advised that the respondent had provided the applicant with a copy of the document that he now sought, namely, the Briefing Advice to the Minister from the ARC. It was submitted on behalf of the respondent that although the document does not contain or relate to the Reviewers’ opinions, it was nevertheless provided to the applicant. The respondent was not aware of the existence of any other documents that would relate to the applicant’s original request. It was submitted that if the applicant wished to make a broader investigation of the respondent’s documents relating to the 2009 decision, it was open to him to lodge a fresh FOI request.
The applicant said that he was not satisfied with the document provided as it did not comply with the requirement in the Act to include detailed reasons for the recommendations. The applicant referred the Tribunal to the Tribunal decision of Andrews and Australian Research Council 2007 [AATA] 1026 but did not address any specific provision of the decision. This decision concerns the obligation to notify under the FOI Act and its relevance to the current application is not evident to the Tribunal.
The respondent also opposed any application for an extension of time to file a fresh application on the basis that the applicant was afforded an opportunity to seek review of his FOI request and subsequently made a decision to withdraw his application on receipt of further information provided by the respondent.
The applicant conceded that he was provided with a copy of the Briefing Advice to the Minister from the ARC and submitted a copy of the document to the Tribunal. He argued however, that in light of the provision of this document, there may be other documents within the possession of the ARC that could relate to his request. He provided no evidence in support of his suspicion and the Tribunal considers it mere speculation on his part. In his application for review by the Tribunal, the applicant identified the relevant part of the decision under review as “access to the reviewers’ reports of my unsuccessful proposal under the Future Fellowships Scheme”. The applicant did not contend that he had been denied access to these reports or that he suspected that any further searches by the respondent would locate any additional information regarding the Reviewers’ Reports.
There has been a considerable lapse of time from the date of dismissal of the application for review on 14 May 2010 and the applicant’s application for reinstatement. The Tribunal considers that there is no justification for the application to reinstate. The applicant has not satisfied the Tribunal that there are any reasonable prospects of success of his application. Given the considerable time delay following his original request in November 2009, the Tribunal considers that there would be prejudice to the respondent by way of increased time and costs associated with the reinstatement of the application for which there has been no demonstrated prospect of success.
An application for extension of time is made pursuant to the provisions of section 29(7) of the Administrative Appeals Tribunal Act 1975. This sub-section states that the Tribunal may extend time for the making of an application “if the Tribunal is satisfied that it is reasonable in all the circumstances to do so”.
For the reasons identified above, the applicant has failed to satisfy the Tribunal that time should be extended to enable him to file a fresh application. He chose to withdraw his earlier application on the basis that he had received the requested documentation and has not submitted that there is any further documentation relating to the Reviewers’ Reports that could be provided by the respondent. As stated above, the Tribunal considers that his suspicion that there may be further documentation relevant to his request is mere speculation. The applicant has failed to satisfy the Tribunal that there is any prospect of success of a new application for review.
Nor has the applicant provided an adequate explanation for the delay in seeking a fresh review of the decision other than the identification of the document containing the Briefing Advice to the Minister from the ARC which was more recently provided to him by the respondent. The Tribunal is not satisfied as to the merits of his application merely on the basis of the provision of this document. The Tribunal accepts that the respondent acted reasonably in responding to the applicant’s requests.
Given the considerable lapse of time from the original FOI request, the Tribunal considers that it would be unfair and against general public interest to grant an extension of time in these circumstances. After such a long period of time, the interests of justice are served by the finality of administrative decisions (Re S & J Ferguson Ltd and Minister for Arts, Heritage and Environment (1986) ALD 145). It is also relevant that the applicant sought the dismissal of his application in circumstances where he believed that his application had been satisfied.
For all of these reasons both the application to reinstate and the application for an extension of time are refused. It is accordingly not necessary to consider the application for a change of venue.

I certify that the preceding 24 (twenty four) paragraphs are a true copy of the reasons for the interlocutory decisions herein of Ms A F Cunningham (Senior Member)

[Sgd : Administrative Assistant]

Dated 9 August 2012

Date(s) of hearing	2 July 2012
Applicant	In person
Counsel for the Respondent	Mr Justin Davidson
Solicitors for the Respondent	Ms Louise McConnell, Australian Government Solicitor