Chu v Telstra Corporation Ltd
[2008] FMCA 645
•15 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHU v TELSTRA CORPORATION LTD | [2008] FMCA 645 |
| ADMINISTRATIVE LAW – Appeal from the Administrative Appeals Tribunal – Freedom of Information – where some of the requested documents were not found – whether the Tribunal erred in law in finding that the respondent took all reasonable steps to find the requested documents. |
| Administrative Appeals Tribunal Act 1975, ss.2A, 44(6) Freedom of Information Act1982, ss.15, 15A, 24A |
| Carr v Finance Corporation of Australia [No 1] (1981) 147 CLR 246 Chu v Telstra Corporation Ltd (2005) 147 FCR 505, (2005) 89 ALD 39 Khoh v Telstra Corporation Ltd [1998] AATA 45 Stockdale v Alesios (1999) 3 VR 169 |
| Applicant: | RICHARD CHU |
| Respondent: | TELSTRA CORPORATION LTD |
| File Number: | MLG 1625 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 16 May 2008 |
| Date of Last Submission: | 12 August 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Richard Chu (in person) |
| Counsel for the Respondent: | Jason Pizer |
| Solicitors for the Respondent: | FOI Solutions |
ORDERS
The appeal filed on 8 October 1007 is dismissed.
The application filed on 18 July 2008 is dismissed.
The applicant pay the respondent’s costs of the proceeding including reserved costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1625 of 2007
| RICHARD CHU |
Applicant
And
| TELSTRA CORPORATION LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal made on 10 September 2007. The Tribunal in that decision affirmed a decision of Telstra Corporation Ltd to refuse access to certain parts of its files in respect of the applicant. The refusal was pursuant to s.24A of the Freedom of Information Act1982 (“the FOI Act”). That section provides as follows:
An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
The underlying issue in this case is that Telstra had provided to the applicant a good many of its files relating to him but had not provided his entire personnel file. Telstra conceded that a personnel file in respect of the applicant ought to have existed.[1] Telstra’s case was that it had searched exhaustively for the requested documents but could not find them. The applicant’s case was that Telstra’s search had been inadequate. The Tribunal found that Telstra had in fact taken all reasonable steps to find the applicant’s files, and had provided to him all the documents contained in a list of the documents he sought except his annual performance appraisals and an entry in his occupational health medical file for 2 September 1994.
[1] Tribunal’s reasons for decision at [76]
History
The applicant was employed by Telecom from 1989 and then by its successor, Telstra, until he was involuntarily retrenched on
8 September 1997. By letter dated 13 November 1997, the applicant’s solicitors asked Telstra under the FOI Act for all the files held by Telstra in relation to the applicant. The application fee was not paid until 13 February 1998, at which time Telstra began to process the request. By letter dated 20 April 1998, a Mr Simpson at Telstra advised the applicant that it had decided to grant full access to all the documents that had been found. Those documents were described as:
·a complete copy of the legal file compiled in anticipation of an unfair dismissal case concerning Mr. Chu, including all available documents from Mr. Chu’s Managers and all available personnel documents
·a copy of all paperwork dealing with the payout of Mr. Chu’s redundancy
·a copy of all standard system reports dealing primarily with leave and pay history details; as previously discussed such standard reports include any information generally considered to be of use to a non-systems person and they are released free of charge
By letter dated 6 July 1998, the applicant’s solicitors asked Telstra to search its records again, noting that no personnel files had been released. By letter dated 9 March 1999, the applicant’s solicitors asked Telstra to reply to the letter of 6 July 1998. By letter dated
9 March 1999, Telstra advised that it had not received the letter dated
6 July 1998and further advised that, before the release of the documents on 20 April 1998:
a comprehensive search took place which involved Mr Chu’s business managers, the personnel area and also the legal area. … The existence of any other personnel documents could not be established.
Nearly five years later, by fax dated 24 March 2003, the applicant noted that Telstra had refused access to his personnel records and sought an internal review of that decision. By fax dated
7 November 2003, a Mr Sutton at Telstra advised the applicant that he had extended the period in which the applicant could seek internal review. By letter dated 26 November 2003, Mr Sutton released to the applicant additional documents that had been found.
On 28 January 2004, the applicant applied to the Tribunal for review of Telstra’s decision on internal review. Telstra conducted further searches prior to the hearing and found an occupational health medical file relating to the applicant. Telstra provided that file to the applicant on 9 June 2004.
On 28 October 2004, the Tribunal affirmed Telstra’s decision. The applicant appealed to the Federal Court. On 1 December 2005, Finn J set aside the Tribunal’s decision and remitted the matter to the Tribunal for re-determination: Chu v Telstra Corporation Ltd (2005) 147 FCR 505 (2005) 89 ALD 39. The error identified by his Honour was that the Tribunal had asked itself whether Telstra had taken reasonable steps to locate the documents sought rather than asking whether Telstra had taken all reasonable steps to locate the documents sought: [34]. His Honour noted at [39] “that every stage in the review process brought forth further discoveries” and explained at [35] to [37] that:
[35] It is understandable, where the decision as to the taking of all reasonable steps is left to agency or minister concerned (subject to tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency’s or minister’s possession should only be able to be denied on the s 24A ground when the agency (or the minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.
[36] The tribunal’s failure to appreciate the significance of “all” has, in my view, led it to adopt a tempered and erroneous view of what is required to be done for s 24A purposes.
[37] In saying this I infer, as I earlier indicated, that it adopted the approach to s 24A espoused in earlier tribunal decisions. In consequence I am not satisfied that the tribunal properly understood the critical evaluation it was required to make of the steps taken by Telstra.
On 10 September 2007, the Tribunal again affirmed Telstra’s decision on internal review. The Tribunal concluded that:
a)Telstra had taken all reasonable steps to find the applicant’s files;
b)further documents may have been in Telstra’s possession; but
c)they could not be found or did not exist.
Grounds of appeal
The applicant’s notice of appeal nominated 10 questions of law. Further questions of law were identified during the course of the hearing before this court. The respondent consented to those questions of law being dealt with as if they were contained in the notice of appeal.
Under the heading “Grounds”, the notice of appeal provided a 20 page commentary on the Tribunal’s decision and an elaboration of the nominated questions of law. Much of the commentary consists of general comments about the Tribunal’s decision and challenges the Tribunal’s findings of fact. The general comments do not constitute grounds as such. However, I will take into account the elaboration of the nominated questions of law in dealing with each of those questions.
Question 1: Whether the Tribunal has properly understood and carried out the critical evaluation it was required to make of the steps taken by Telstra and has it failed to appreciate the significance of “all” in Section 24A by adopted a tempered and erroneous view of what is required to be done for s 24A purposes.
This question raises the issue of whether the Tribunal in its second decision had again failed to understand that s.24A of the FOI Act required Telstra to have undertaken all reasonable steps as explained by Finn J in Chu v Telstra Corporation Ltd (2005) 147 FCR 505, 89 ALD 39. The Tribunal was well aware of Finn J’s decision and set out the essential features of it in paragraph 2 of its second decision. The Tribunal also set out at paragraph 104 of its second decision extracts from Finn J’s decision relating to the Senate Standing Committee Report and the explanatory memorandum for the Bill which led to the enactment of s.24A of the FOI Act. I am satisfied on the basis of these statements that the Tribunal understood the nature of the task it was required to perform.
However, the applicant argued that the Tribunal failed to perform the required task. In particular, the applicant argued that the search undertaken for his files was less intense than the search undertaken by Mr Sutton for the files of Ms Khoh in the matter of Khoh v Telstra Corporation Ltd [1998] AATA 45. Moreover, the applicant argued that in Khoh’s Case, Mr Sutton had issued a formal request for a search and the recipient of that request had carried out a search down to the filing cabinets level.
That is not entirely accurate. Paragraph 9 of Khoh’s Case indicates that the evidence was that the filing cabinets where the relevant documents might have once been stored had been emptied by a manager who had since left the organisation and the filing cabinets had been made available for others to use. The implication was that the former contents of the filing cabinets had not been searched because they had been discarded. Khoh’s Case accordingly cannot be taken as a precedent that all filing cabinets must be searched to prove that all reasonable steps had been taken. On the other hand, as a matter of logic, if there is reason to believe that a particular filing cabinet may contain relevant documents, it would obviously be necessary to search that filing cabinet to satisfy the requirement of taking all reasonable steps.
The reference in Khoh’s Case to the filing cabinets cannot be taken as an indication that the search in that case was more intensive than the search in the present case. The steps that were taken in each case must be examined to see if they amounted to all reasonable steps in the circumstances of the particular case.
The applicant also argued that the facts of Khoh’s Case demonstrated that Telstra undertook document searches by sending a formal request for a search to appropriate individuals. The applicant’s argument was based on Mr Sutton’s evidence in Khoh’s Case that he had sent a formal request to a particular person. The applicant said that Telstra had failed to produce a formal request in his case. Mr Sutton’s evidence in the present case, at page 49 to 50 of the transcript of 14 August 2006, was that any request for a search that he made was formal in the sense that it was issued from the legal directorate of Telstra but that it may have been in the form of an email or telephone call.
The reality is that Mr Sutton’s affidavit sworn on 2 June 2004 exhibits numerous emails and file notes of telephone conversations that documented his search for the relevant files. Those documents can be regarded as formal requests, in the sense that they emanated from the legal directorate, even though they were not headed “formal request for document search” or something similar. However, whether there was a formal request is a red herring. The essential question was whether all reasonable steps were taken in this case to locate the relevant documents.
There was detailed evidence in this case that extensive searches had been undertaken to find the relevant documents. That evidence was in affidavit form and oral. Telstra’s witnesses were cross examined by the applicant. As a matter of law, in my view, it was open to the Tribunal on the evidence to conclude that Telstra had taken all reasonable steps to find the relevant documents. I am not persuaded that the Tribunal failed to understand or carry out its task of determining on the evidence before it whether all reasonable steps had been taken by Telstra to find the documents that the applicant sought.
Having said that, however, Telstra’s document storage and retrieval system left a lot to be desired. The Tribunal found at paragraph 118 of its reasons for decision that Telstra had commenced centralisation of its record management in late 1993 or 1994 but by 1999 only payroll and leave records had been centralised. The Tribunal also found that a further centralised database began in August 2004 and it was expected to take some years to complete it. The evidence suggests that Telstra’s records for the period from 1989 to 1997, when the applicant was employed by Telecom and then Telstra, were stored in a somewhat ad hoc manner. The retrieval of such records appears from the evidence to have involved detective work, rather than a straightforward calling up of documents.
Question 2: Whether the Tribunal has erred in law by postulating that “Much of Mr. Chu’s evidence and his contentions related to events prior to the lodging of his valid FOI application of 13 February 1998. This evidence and the contentions are not directly relevant to the Tribunal’s decision making process…” Emphasis added.
This question of law suggests that the Tribunal failed to take into account a relevant consideration, namely, the events that preceded the lodging of the applicant’s valid FOI claim on 13 February 1998. The applicant said that s.15A of the FOI Act forbids the making of an application under that Act for personnel records where the relevant agency has an established procedure for requesting such records and no such request has been made. Accordingly, the applicant submitted that events prior to 13 February 1998 were relevant and the Tribunal had erroneously excluded them.
However, the Tribunal did in fact refer to a number of events that preceded 13 February 1998. In paragraph 4 of its second decision, the Tribunal noted that:
a)on 1 August 1997, the applicant requested a copy of his personnel file;
b)by inference, the applicant required the records for a hearing before the Involuntary Redundancy Review Board;
c)the IRRB also requested the applicant’s files;
d)Telstra advised the IRRB that only the applicant’s retrenchment files could be accessed;
e)a search for all relevant files was commenced in August 1997; and
f)
the applicant’s solicitor made a further request for all documents held by Telstra relating to the applicant by letter dated
13 November 1997.
At paragraph 86 of its second decision, the Tribunal noted that the applicant had requested access to his file on 24 December 1996. The Tribunal also observed at paragraph 94 of its second decision that:
94. Much of Mr Chu’s evidence and his contentions related to events prior to the lodging of his valid FOI application of
13 February 1998. This evidence and the contentions are not directly relevant to the Tribunal’s decision-making process; but they do document several episodes of conflict between Mr Chu and Telstra from late 1993 including appeals against Mr Chu’s involuntary retrenchment of 1993, 1996 and 1997, Mr Chu’s activities as a union representative and the imposition of work bans and his litigation in late 1997 for unfair dismissal; the latter being based on age discrimination and the NSSC’s failure to take all reasonable steps to place him in a permanent position within Telstra.
The Tribunal noted at paragraph 106 of its second decision that prior to the application of 13 February 1998, the applicant had been provided with his retrenchment files and his legal file, the latter relating to his unfair dismissal claim.
In these circumstances, it cannot be said that the Tribunal failed to have regard to the events prior to 13 February 1998. Rather, the Tribunal, as it expressly stated, concluded that those events were not directly relevant to the matter before the Tribunal. That is entirely correct. While s.15A of the FOI Act required a certain procedure to be followed before making an application for personnel records under s.15 of the FOI Act, it was not in dispute that the applicant had followed that procedure in the present case. Accordingly, the events preceding
13 February 1998were of limited relevance. They showed that some documents had been provided to the applicant in 1997 but left open the question of whether all reasonable steps had been taken since then to find the documents the applicant sought. That was the question the Tribunal had to answer.
The applicant’s real complaint in relation to this question seems to be his belief that the Mr Sutton should have reviewed Mr Simpson’s decision. However, once the matter reached the Tribunal, the decisions of both Mr Sutton and Mr Simpson were irrelevant, in the sense that the Tribunal was required to make the correct and preferable decision on the material before it about whether all reasonable steps had been taken by the time of the Tribunal’s decision. The steps taken by Mr Simpson and Mr Sutton were relevant to determine whether all reasonable steps had been taken. But their views about whether all reasonable steps had been taken were immaterial.
The Tribunal did take into account the events prior to
13 February 1998, to the extent that they were relevant. Accordingly, the claim that the Tribunal failed to take into account relevant material cannot be sustained.
Question 3: In light of Question of Law No.2, was the Tribunal entitled to be ambivalent by including in its decision making process pre 13 February 1998 evidence and contentions provided by Telstra?
This question suggests that the Tribunal took into account irrelevant considerations, consisting of documents that preceded
13 February 1998. In his written submissions, the applicant suggested that the Tribunal allowed Telstra to rely on matters preceding
13 February 1998but would not allow the applicant to do the same.
However, this submission misunderstands the process explained under the previous question. The documents relied on by Telstra were relevant to where the documents in question might have gone, and, therefore, to whether all reasonable steps had been taken to find them. To the extent that the Tribunal took into account matters preceding
13 February 1998, they were not irrelevant.
Question 4: Whether the Tribunal has erred in law by extinguishing the significance of document GWS5 apparently on a whim and not appreciating that Telstra had taken unreasonable step or steps.
GWS5 was an exhibit to the affidavit sworn by Mr Sutton on
2 June 2004. It was Mr Sutton’s record of a telephone conversation on 27 November 1997 between Mr Sutton and Brian Hayes. It said among other things:
In regard to personnel file - Brian is aware that a blue covered file did exist earlier and that he handed them over to ER [ie Employee Relations]. Andrew Brockwell is the contact.[2]
[2] GWS12 is a file note evidencing enquiries being made of Andrew Brockwell.
Mr Sutton’s affidavit in paragraph 9 recounted his telephone conversation with Mr Hayes and said that Mr Hayes had told him that he believed a blue covered file existed earlier and that he had handed it over to the Employee Relations area of Telstra.
Mr Sutton’s affidavit also had exhibited to it as GWS20 an email from Brian Hayes dated 25 February 1998 in which Mr Hayes said:
Distribution Services, and more particularly Corporate Catalogue, is not in possession of Richard Chu’s personnel file. As manager of the group I can state categorically that the said file has never been in my possession. There was a time, and a very short time at that, when “blue” files were passed down to line management for custody. This period was prior to Richard Chu joining Cataloguing from Telecom Industries via the NSSC. Custody of these files resides with ER as far as I'm concerned, if in fact they exist.
Mr Sutton’s affidavit at paragraph 27 recounted the contents of the email. Mr Sutton was not cross-examined by the applicant on the apparent contradiction between Mr Sutton’s file note and Mr Hayes’ email. Under cross-examination by the applicant, Mr Hayes said that he could not recall anyone asking him about the applicant’s personnel file and he had no recollection of a Mr Sutton. The events in question had occurred about 10 years earlier.
The Tribunal dealt with the issue of GWS5 in paragraph 29 of its second decision as follows:
…although an exhibit to Mr Sutton’s affidavit (GWS 20) contained an email from Mr Hayes, dated 4 September 1997 (GSW 24), to the effect that blue personal files existed and that prior to Mr Chu joining Telstra Corporate Cataloguing from Telecom Industries, blue files were passed down the line of management for custody (GWS 20, Transcript p 65). Mr Hayes had stated categorically that Mr Chu’s blue file had never been in his possession. (Tribunal note – there is a hand-written file note of a telephone conversation recorded by Mr Sutton (Exhibit R1, GHS 5, dated 27 November 1997), wherein Mr Sutton says Mr Hayes had handed Mr Chu’s blue file to ER (Employees Relations). As Mr Hayes has repeatedly denied having Mr Chu’s blue file, this telephone communication appears to have been misinterpreted by Mr Sutton and as a result by Mr Chu).
In the circumstances, it cannot be said that the Tribunal extinguished the significance of GWS5 on a whim. There was evidence before the Tribunal, in the form of Mr Hayes’ email, that he had never been in possession of the applicant’s blue file. The Tribunal was entitled to prefer the evidence constituted by Mr Hayes’ email to the evidence constituted by Mr Sutton's file note of his conversation with Mr Hayes. Mr Hayes’ own statement of what documents he had possessed was more likely to be accurate than Mr Sutton's file note of what Mr Hayes had told him. In my view, it was open to the Tribunal to conclude that Mr Sutton had misunderstood what Mr Hayes had told him. This was a reasonable way to reconcile the two conflicting pieces of evidence.
The applicant’s stated complaint about GWS5 was that the Tribunal did not take the view of GWS5 in the second decision that it had taken in the first decision. That is neither here nor there. The Tribunal is entitled to take a different view of the evidence when it considers the matter again. Indeed, the Tribunal should do so, if it realises it made a mistake the first time, or if it simply sees the matter more clearly the second time.
Question 5: Whether it was legally correct for the Tribunal to accept the submission by Telstra that paragraphs 4 to 23 of the applicant’s submission were “irrelevant as they related to the proceedings of the Tribunal of 25 August 2004 and the decision of 28 October 2004”.
The applicant’s written submissions for the second hearing before the Tribunal are contained at pages 928 to 943 of the court book. Paragraphs 4 to 23 of the applicant’s written submissions were under the heading, “First AAT proceeding”. Some of the submissions under that heading dealt with the Tribunal’s first decision and some dealt with the alleged deficiencies in the searches that Telstra had undertaken.
The Tribunal noted at paragraph 81 of its second decision that Telstra had submitted that paragraphs 4 to 23 of the applicant’s submission were irrelevant because they related to the proceedings of
25 August 2004and the decision of 28 October 2004. The Tribunal does not appear to have expressly ruled on Telstra’s submission.
However, at paragraph 55 of its second decision, the Tribunal said that paragraphs 4 to 23 of the applicant’s written submissions should have been made at the hearing on 25 August 2004. Nevertheless, the Tribunal in paragraphs 55 to 60 of its second decision went on to summarise paragraphs 4 to 23 of the applicant’s written submission.
At paragraph 98 of its second decision, the Tribunal expressly accepted one of those submissions, namely, that it had made a mistake about the date of the release of the applicant’s occupational health medical file. Additionally, in paragraph 102 of its second decision, the Tribunal alluded to the applicant’s submissions at paragraph 22 about the genesis of the Tribunal’s use of the notion, “exhaustive searches”. The Tribunal acknowledged that it had been remiss in not adequately explaining what it had meant by that notion.
In these circumstances, it cannot be said that the Tribunal did in fact accede to Telstra’s submissions that paragraphs 4 to 23 of the applicant’s written submissions were irrelevant and should be excluded from consideration. To the extent that those submissions were relevant, the Tribunal took them into account.
Question 6: Whether the Tribunal had acted improperly by depriving Telstra witnesses of the opportunity to answer questions freely on their own upon being examined or cross-examined.
The applicant nominated three instances where he said the Tribunal had improperly intervened during the cross-examination of witnesses.
The first occurred during the questioning of Mr Sutton about his discussions with Mr Simpson. The applicant suggested at pages 45 to 46 of the transcript of 14 August 2006 that, when Mr Simpson conducted the initial search for documents and found the applicant’s medical file, he should have reported having found that file to his supervisor, Mr Sutton. Mr Sutton said no, Mr Simpson should not have reported that fact to him.
There was some further questioning about whether the blue (personnel) file might have been sitting on Mr Simpson’s desk at some stage without Mr Sutton knowing. The solicitor for Telstra objected saying that the questions were seeking supposition. He also said that, given that Mr Sutton was responsible for any internal review of Mr Simpson’s decisions, it was entirely proper that Mr Simpson, as the primary decision maker, would not have discussed the details of his work with Mr Sutton, even though Mr Sutton was his supervisor. The Tribunal picked up that point and attempted to explain it to the applicant.
In my view, it was appropriate for the Tribunal to stop the applicant’s questioning about speculative matters. The Tribunal is required by s.2A of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) to conduct a review that is fair, just, economical, informal and quick. Mr Sutton had already said in very clear terms that Mr Simpson would not have told him about finding the medical file. The Tribunal is not bound by the rules of evidence. It knew that government departments and instrumentalities make decisions and conduct internal reviews of those decisions with arrangements for independent decision making by subordinate staff and internal review by their supervisors. The Tribunal was entitled to rely on that knowledge, having alerted the applicant to it, and focus the hearing on matters that were relevant.
The second instance relied on by the applicant concerned the questioning of Mr Sutton about his conversations with his manager, Mr Armstrong. The passage is at pages 100 to 103 of the transcript and was as follows:
MR CHU: Mr Sutton, while you were the FoI unit manager who did you report to? ---Which time period.
In 1997, 1998? ---John Armstrong.
John? ---John Armstrong.
THE TRIBUNAL: Both years? --- Sorry?
Both years? ---Yes.
MR CHU: Did you keep John Armstrong informed about the case you were conducting? ---Yes.
Have you ever seeked assistance or advice from your manager, in this case John Armstrong? ---Yes.
What sort of advice did you ask him for?
MR BATSKOS: Ma’am, I am not sure if – I don’t have a great concern, but I am not sure if there is a potential problem here because John Armstrong was ---
THE TRIBUNAL: On the list.
MR BATSKOS: Well, he was Mr Sutton’s direct manager, but I am not sure if he was consulted from time to time for legal advice as well because it was within the legal directorate and he was legally qualified, so I am just not sure if here it was a managerial type advice or legal advice. So I just ---
THE TRIBUNAL: Does Mr Sutton have any direct recollection of what advice you might have sought eight years ago? ---It would have been more recently. I am just trying to think. I may have sought his advice on interpretation but the actual---
MR CHU: Excuse me, interpretation of what? ---Of the FoI Act. But the – there is a requirement that the decision maker has to be reasonably removed from management so I wouldn’t have involved John in ---
THE TRIBUNAL: In the facts? --- In the decision, yes.
MR CHU: So to a certain degree your decision was influenced by the advice from John Armstrong?
THE TRIBUNAL: No, he just said the reverse. He said the reverse of that. He said he would have sought advice on legal interpretation of the Act, not the facts because of this division between the managerial level and the decision maker. They have to be seen to be independent. So in fact Mr Sutton’s answer was the reverse of your interpretation of the answer. Am I right, Mr Sutton? --- Yes, definitely.
He would not be acquainted with the facts, the only advice he could get from Mr Armstrong was the interpretation of the Freedom of Information Act.
MR CHU: And how can find out what Mr Sutton said was true unless we ---
THE TRIBUNAL: He is saying it under oath. That is our ultimate test of the truth is to give your evidence under oath.
MR CHU: Yes. Evidence under oath would be taken as true, regardless?
THE TRIBUNAL: Unless there is evidence to show that the witness has committed perjury and told a lie.
MR CHU: So in this case can I request to have Mr John Armstrong to give evidence?
MR BATSKOS: Ma’am, we would challenge that on the basis of relevance because that still doesn’t address whether all reasonable ---
THE TRIBUNAL: The reasonable steps, I know.
MR BATSKOS: --- steps were taken.
THE TRIBUNAL: We are getting off the track again, Mr Chu. It doesn’t matter if Mr Armstrong had interfered, had been aware of the facts, if Telstra then took every reasonable step they have met the requirements of the Act.
MR CHU: You know that is just – that bit, you know, difficult for me to understand because here we have a situation where in this FoI unit Colwyn Simpson was doing something which is entirely separated from the knowledge of Mr Sutton.
THE TRIBUNAL: Yes.
MR CHU: And then Mr Sutton is supposed to be independent.
THE TRIBUNAL: Yes.
MR CHU: Yes. And he should be able to do his review on his own without any outside interference.
THE TRIBUNAL: Yes.
MR CHU: But in this case he did consult someone else but he ---
THE TRIBUNAL: No, no, his evidence isn’t that he consulted definitely, he said he might have consulted Mr Armstrong, probably could have, but would have done so on legal interpretation only. He would not reveal the fact situation – the facts of your case, to Mr Armstrong because of the need for this division between managerial staff and FoI staff so that they are, and appear to be, independent.
MS CHU: But that is the way it should be, but we are not sure.
THE TRIBUNAL: Yes, that is the way it should be.
MR CHU: Yes, that is the way they should be.
THE TRIBUNAL: Yes, and Mr Sutton has given sworn evidence that that is the way it is.
MR CHU: So can I have the opportunity to test what Mr Sutton has said?
THE TRIBUNAL: I don’t see how you can test it.
MR CHU: Just putting him on the stand and make him ---
THE TRIBUNAL: Mr Armstrong?
MR CHU: Yes.
THE TRIBUNAL: I am sure he would get up and say he can’t recall. Mr Sutton can’t recall exactly if he sought legal advice when undertaking your review. He thinks he may have got legal advice from Mr Armstrong, but he is not certain of it, are you? --- No.
But it was normal practice, presumably, in the office, that if you had some sort of problem with interpretation you asked somebody who was legally qualified? ---Exactly yes, and I thought that was a more general question regarding to FoIs.
Yes, I realise that you thought that, it was not a specific question, yes. And I am sure that in actual fact you have no memory of speaking to Mr Armstrong regarding Mr Chu’s application at all? --- Yes.
MR CHU: I actually hear him say yes, he did.
THE TRIBUNAL: No, no, he said in a – he said it in a general way that he only went to Mr Armstrong with FoI interpretation of legislation questions. He did not say that he had specifically sought such advice in relation to your application.
Given that Mr Armstrong was a lawyer, it was appropriate for Telstra’s solicitor to flag the possibility that the advice provided by Mr Armstrong could be subject to legal professional privilege. Mr Sutton went on to explain that the advice he obtained from Mr Armstrong might have concerned the interpretation of the FOI Act but did not concern the decision itself which was Mr Sutton’s personal responsibility. The applicant wrongly put to Mr Sutton that his decision had been influenced by Mr Armstrong. The Tribunal, properly, stepped in to clarify the evidence that had been given.
However, later, the Tribunal put it to Mr Sutton that he had no recollection of speaking to Mr Armstrong about the applicant’s application at all. That was not consistent with Mr Sutton’s own evidence that he might have spoken to Mr Armstrong about legal issues arising in relation to the applicant’s application. Nevertheless, whether Mr Sutton spoke to Mr Armstrong did not bear on whether Telstra took all reasonable steps to find the documents in question. There is no reason to suppose that Mr Armstrong had any more knowledge of where the documents in question were or how to find them than Mr Sutton did. Accordingly, even if the Tribunal did put words into Mr Sutton’s mouth on this occasion, I am not persuaded that it could have affected the decision.
The third instance relied on by the applicant concerned the questioning of Mr Sutton about the formal request for a search. This is recorded at pages 49 to 50 of the transcript, where the following exchange occurred:
[MR CHU:] So what I am asking you is, is there such a thing as a formal request for your search?
THE TRIBUNAL: You mean a bit of paper?
MR CHU: In whatever form, I think it was mentioned in the documentation somewhere that Mr Sutton sometimes made formal requests for searches. So I am just curious to what would be a formal request for a search?--- I can’t remember the wording – the context of the wording, but any request we make is formal, it would be part of the legal directorate of the company. If we ask for a search to be undertaken for documents, it is a formal request.
THE TRIBUNAL: It is sanctioned by Telstra and therefore is formal and I presume it is in writing and directed to some person, or persons? --- We use email as well.
MR CHU: So you can’t remember or you cannot recall, that is the process where you would send out a written request for information, or for documents?
MR BATSKOS: Ma’am, he just said that they used emails.
THE TRIBUNAL: Yes.
MR BATSKOS: Mr Sutton just answered by saying that emails are used.
THE TRIBUNAL: Mr Sutton said they use emails.
MR CHU: They use?
THE TRIBUNAL: Email.
MR CHU: Emails.
THE TRIBUNAL: They email their requests for the search of documents to the persons they wish to search for them so that you have an electronic record, possibly a paper record as well.
MR CHU: So is that in the form of a ---
THE TRIBUNAL: We have been told that there is no formal form.
MR CHU: No formal form.
THE TRIBUNAL: The formality, the word formal really means that it is sanctioned by the legal department to make such requests. It doesn’t mean it is a particular form where you fill out little boxes and spaces.
MR BATSKOS: There is many examples of it in the affidavit material, ma’am, showing the searches that were done by email.
THE TRIBUNAL: Yes, yes.
MR CHU: So that all requests of that nature would be done by email?
THE TRIBUNAL: Well, that is what Mr Sutton has said. I do say that they write a letter occasionally?--- Well, we could also phone people up because it is often part of – it often to our advantage to actually talk to people, so yes, it could be a phone conversation.
MR CHU: So it could be a phone conversation, it could be an email, it could be something else? --- Predominantly emails and phone conversations.
THE TRIBUNAL: And you minute your calls? --- We filenote calls, yes.
When the Tribunal asked, “You mean a bit of paper?”, the Tribunal was properly seeking to clarify the question. Mr Sutton then answered it, saying that any request he made from the legal directorate is formal. The Tribunal attempted to clarify the answer, asking whether the request would be in writing. Mr Sutton said he used email as well. The applicant, wrongly, in view of Mr Sutton’s answer, put to him that he could not recall the process of sending a written request. The solicitor for Telstra correctly intervened to remind the Tribunal that Mr Sutton had said he sent emails. The Tribunal said, based on the exhibits to Mr Sutton’s affidavit and his oral evidence, that he sent emails and had an electronic record and a paper record. That was a fair summary of the evidence. The Tribunal then explained for the applicant’s benefit that any request sent by the legal directorate was a formal request, although it was not on a particular form, and sometimes included letters. That was a fair statement of the oral evidence and the exhibits to Mr Sutton’s affidavit. Mr Sutton then added that he sometimes made a telephone call. The Tribunal clarified, based on the exhibits to Mr Sutton’s affidavit, that a minute was kept of the telephone calls.
The Tribunal in this passage seems to me to have proceeded in a fair way to focus on relevant matters while allowing the applicant to elicit the appropriate evidence. The fact is that Mr Sutton said at the outset that any request he sent was a formal request. The Tribunal’s comments were based on the exhibits to Mr Sutton’s affidavit, which were in evidence. The Tribunal was entitled to keep the hearing moving and focused on relevant matters.
Question 7: Whether the Tribunal had appreciated that s24A is not meant to be a refuge for the disordered or disorganized.
This question refers to paragraph 35 of the judgment in Chu v Telstra Corporation Ltd (2005) 147 FCR 505, (2005) 89 ALD 39, which is as follows:
[35] It is understandable, where the decision as to the taking of all reasonable steps is left to agency or minister concerned (subject to tribunal review), why this more stringent requirement has been imposed. A person requesting access to a document that has been in that agency’s or minister’s possession should only be able to be denied on the s 24A ground when the agency (or the minister) is properly satisfied that it has done all that could reasonably be required of it to find the document in question. Taking the steps necessary to do this may in some circumstances require the agency or minister to confront and overcome inadequacies in its investigative processes. Section 24A is not meant to be a refuge for the disordered or disorganised.
The Tribunal, in paragraph 116 of its second decision, said:
116. The Tribunal has revisited the Administrative Appeals Tribunal’s decisions considered in the decision of 28 October 2004, particularly in light of Justice Finn’s comments that s 24A of the FOI Act is not meant to be a refuge for the disordered or disorganised.
The Tribunal went on to note at paragraph 118 that Telstra had commenced centralisation of its record management in late 1993 or 1994 but by 1999 only payroll and leave records had been centralised. The Tribunal found that a further centralised database began in August 2004 and it was expected to take some years to complete it. The Tribunal noted at paragraph 121 that the only documents sought by the applicant that had not been found by Telstra were the applicant’s annual performance reports and an entry in his occupational health medical file for 2 September 1994. The Tribunal referred at paragraph 123 to Telstra’s non-centralised record management system and concluded that Telstra had taken all reasonable steps within the confines of that system to find the documents the applicant sought.
In my view, the Tribunal did appreciate that s.24A of the FOI Act is not meant to be a refuge for the disordered or the disorganised. However, the Tribunal also recognised that Telstra’s document storage and retrieval system had been somewhat haphazard in the past. As a matter of reality, that “system”, if it can be so described, imposed severe limitations on Telstra’s ability to retrieve the applicant’s documents. Whatever the intent behind s.24A, it cannot magically correct a “system” that in the past has been disordered and disorganised. Section 24A can demand that logical and thorough investigations be undertaken, but it cannot change the historical fact that a particular document storage and retrieval “system” is disordered and disorganised.
The Tribunal found as a fact on the evidence that, within the confines of its previous “system”, Telstra had taken all reasonable steps to find the documents the applicant sought. That finding was open on the evidence.
In relation to the applicant’s submission that the Tribunal failed to understand that in Khoh’s Case, the applicant’s personnel file was found and released, the last paragraph of that decision makes it clear that only part of the personnel file was found and released to Ms Khoh. In any event, whether the Tribunal misunderstood that aspect of Khoh’s Case makes no difference to the decision in the present case.
The applicant also noted that GWS3 contained a handwritten notation, “Brian – sent Chu’s – ER” and GWS16 said that a Tania McEvitt noted on 19 February 1998 that the applicant’s file had been sent to Peter Ferris, General Manager of Distribution Services on 18 November 1997. In view of GWS5 described above, the applicant asked rhetorically whether all of these documents could be misinterpretations. The Tribunal took the view that the documents were misinterpretations. That view was open on the evidence and the Tribunal was entitled to take it. It is not for the court to disturb such findings of fact. (I would note that it is not known what precisely Ms McEvitt meant by the applicant’s “file”, given that Telstra evidently had a number of different files relating to the applicant.)
The applicant then noted that the Tribunal had accepted that some of Telstra’s evidence was hearsay and said that the Tribunal accepted hearsay evidence and gave it weight accordingly. The applicant said that there was no indication in the Tribunal’s decision of how the hearsay evidence was weighed. It was not necessary for the Tribunal to itemise the weight it gave to each aspect of the evidence. The Tribunal is entitled to give the evidence such weight as it deems fit.
Question 8: Whether the Tribunal had made a decision or decisions that no reasonable decision maker would have made.
To succeed on this ground, the applicant would need to show that no reasonable decision maker could have made the decision that the Tribunal made. The applicant relied on nine aspects of the Tribunal’s decision to show that it was so unreasonable that no reasonable decision maker could have made it.
Firstly, the applicant said that the Tribunal had given a very unorthodox interpretation to his email request dated 24 December 1996 in which the applicant said:
On the matter of access to my PAB appeal file, I hereby apply to you to gain access thereto as per your request, at a future time to be nominated.
I would also like to gain access to my personal file. It would be ideal if this file could be make (sic) available at the same time when I inspect my PAB file. If there is difficulty in achieving this, would you please let me know ASAP.
The Tribunal said at paragraph 86 of its second decision that the applicant had requested his personnel file “at a future time to be nominated”. The Tribunal went on to say that the applicant activated the request by a fax dated 1 August 1997.
The applicant submitted that, in reality, he was asking for access to the file as soon as possible, and it was for the recipient of the email, Mr Atkins, to nominate a time. The applicant said further that Mr Atkins did not nominate a time.
I do not consider that the Tribunal’s interpretation of the email of
24 December 1996 was unreasonable. On its face, the email required liaison between the applicant and Mr Atkins about a suitable time for the applicant to inspect the files. The applicant did not pursue the matter for about eight months. As he was the one who wanted access to the files, it was to be expected that he would seek to arrange an appointment.The second matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that Mr Hayes, the applicant said, gave the blue file to Employee Relations when he could have released it to the applicant. However, the Tribunal found that Mr Hayes did not ever have the blue file and Mr Sutton had misunderstood the statements made to him by Mr Hayes.
That does not strike me as being an unreasonable interpretation of the evidence. Mr Hayes was adamant that he had never had the blue file.
The third matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that Mr Steele said in an email in GWS30 that there was no such thing as a “personal file”. Mr Steele went on to say that the relevant people needed to take the applicant’s ERSOPS and MIR files to the applicant the next day and allow him to make copies of whatever he wanted.
The applicant did not explain how the Tribunal’s decision was unreasonable in the light of Mr Steele’s statement. It seems to me that Mr Steele was simply saying that there is not a single file that could properly be described as a person’s personal file and there were in fact other files that contained personal information such as the ERSOPS and MIR files. Mr Steele’s statements do not strike me as leading to the Tribunal’s decision being unreasonable.
The fourth matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that Employee Relations had sent the applicant’s file to Mr Peter Ferris. Again, the applicant did not explain how this fact made the Tribunal’s decision unreasonable. As noted above, it is not clear exactly what Ms McEvitt meant by the applicant’s “file”.
The fifth matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that Mr Simpson took more than the statutory 60 days to arrive at a primary decision and the Tribunal levelled no criticism for that failure. The Tribunal’s task was to review the internal review decision made by Mr Sutton. It would have been gratuitous for the Tribunal to criticise Mr Simpson. In the circumstances, I do not consider that it was unreasonable for the Tribunal to refrain from any criticism of Mr Simpson.
The sixth matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that, the applicant said, Mr Simpson deceived and lied about the discovery of the medical file and the Tribunal’s only concern was that the file had eventually been released. The Tribunal accepted at paragraph 99 of its second decision that Mr Simpson had discovered the applicant’s occupational health and medical file in 1998 but it was not released to the applicant until 2004. The Tribunal noted at paragraph 100 that Mr Sutton had described Mr Simpson’s failure to release the document in 1998 as inexplicable and Mr Simpson, in his evidence, had no recollection of the applicant’s application. In these circumstances, the Tribunal said that it “cannot see how it could enquire further.”
It was implicit in the Tribunal’s reasons that there had been a failure on Mr Simpson’s part in 1998. However, the fact was that the applicant’s occupational health medical file was released to him in June 2004. In these circumstances, it was not unreasonable for the Tribunal to let the matter rest.
The seventh matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it is that the General Counsel of Telstra’s legal directorate “sat on” the applicant’s internal review request for six months before passing it on to Mr Sutton and the Tribunal did not blame Telstra for the delay. The fact is that the internal review request was out of time. It was lodged about five years after the decision sought to be reviewed. Telstra did not respond to the internal review request for about six months. However, its response was to give an extension of time. In these circumstances, I do not consider that the Tribunal refraining from criticising Telstra for the six month delay was unreasonable.
The eighth matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it was that Mr Sutton, during the internal review, failed to locate the medical file “buried” by Mr Simpson, and the Tribunal’s only concern was that the file was eventually released. This matter has already been discussed. I do not consider that this matter suggests that the Tribunal’s decision was unreasonable. The Tribunal’s task was to assess whether all reasonable steps had been taken, not to gratuitously criticise people.
The ninth matter relied on by the applicant to show that the decision of the Tribunal was so unreasonable that no reasonable decision maker could have made it was that no search was directed to the South Adelaide site by Mr Simpson or Mr Sutton and the Tribunal concluded that a belated enquiry made in May 2007 was acceptable. It may have been that there was information before Mr Simpson and Mr Sutton which should have led them to make enquiries of the South Adelaide site. However, the question for the Tribunal was whether all reasonable steps had been taken as at the time of the Tribunal’s decision. Errors and oversights earlier in the investigative process were of no significance if they had been corrected by the time of the Tribunal’s decision. This matter does not suggest that the Tribunal’s decision was unreasonable.
In any event, the ground of unreasonableness does not apply to unreasonable interpretations of evidence. It applies to unreasonable decisions. That is, the applicant needs to show that the decision by the Tribunal that all reasonable steps were taken to find the documents sought by the applicant was so unreasonable that no reasonable decision maker could have made it. I am not persuaded that the matters identified by the applicant, singly or in combination, demonstrate that the Tribunal’s decision was unreasonable to the requisite degree or at all.
Question 9: Whether the applicant is entitled to the refund of his application fee.
The applicant noted that documents relating to his FOI request were released shortly before the Tribunal hearing and asked why in those circumstances he was not entitled to a refund of his application fee. The applicant did not suggest that he had asked the Tribunal for a refund of his application fee and the Tribunal had refused. Accordingly, I am unable to see how this question could raise an error of law on the part of the Tribunal.
Question 10: Whether the Tribunal has taken the right approach for the rehearing.
The applicant argued that the Tribunal had failed to critically evaluate the steps taken by Telstra and had instead concentrated on noting that almost everything requested by the applicant had been supplied. It is true that the Tribunal observed that the only documents that the applicant sought that he had not received were his annual performance reports and an entry in his occupational health medical file concerning the events of 2 September 1994.
However, I am not persuaded that the Tribunal failed to critically evaluate the steps taken by Telstra. The Tribunal’s critical evaluation of the steps taken by Telstra is demonstrated by its request after the hearing that Telstra check the Adelaide site to see if any of the required documents were held there. This request shows that the Tribunal actively considered whether there were any gaps in the investigative process undertaken by Telstra. The Tribunal identified such a gap and alerted Telstra to it. As it happened, no relevant documents were found at the Adelaide site.
Additional question 1: whether the Tribunal writing to Telstra’s solicitors after the hearing and enquiring whether searches had been conducted at the Adelaide site amounted to a denial of procedural fairness.
The Tribunal wrote to Telstra’s solicitors on 22 May 2007 enquiring about searches at the Adelaide site. Telstra’s solicitors responded to the Tribunal by letter dated 5 June 2007. The applicant told the court that he had received copies of both letters on or about the dates they bear. The Tribunal’s decision was handed down on 10 September 2007. In the intervening three months, the applicant could have asked the Tribunal to hear any submission or further evidence that he wished to proffer. He did not do so. Given that the applicant received copies of both letters, and given that he had ample time to put whatever he wished to the Tribunal, I do not consider that the Tribunal’s letter dated 22 May 2007 led to a denial of procedural fairness.
Additional question 2: whether the Tribunal was biased or whether a fully informed lay observer might have reasonably apprehended that the Tribunal was biased
The applicant submitted that the Tribunal, which was not reconstituted on the remittal, had prejudged the matter by carrying over its mind set from the first decision to the second. The Federal Court when it remitted the matter to the Tribunal did not specify that the matter should be reheard and redetermined by a different Tribunal member. Section 44(6) of the AAT Act provides that the Tribunal need not be constituted on the remittal by the Tribunal member who made the original decision. Nothing in the AAT Act expressly says that the Tribunal should be reconstituted on a remittal.
I am not persuaded that the Tribunal did carry over its mind set from the first decision to the second, and I am not persuaded that a fully informed lay observer would have reasonably apprehended that the Tribunal had carried over its mind set from the first decision to the second. It is by no means compulsory for the Tribunal to be reconstituted on a remittal. Whether reconstitution is necessary or desirable depends in part on the nature of the error that led to the remittal and the nature of the findings made in the first decision. I do not consider that the nature of the error in this case, or the findings made in the first decision, made it necessary or desirable that the Tribunal be reconstituted to avoid actual or apprehended bias. I do not consider that the Tribunal did anything in this case that could lead to a conclusion that it was actually biased, or that could have led a fully informed lay observer to reasonably apprehend that the Tribunal was biased.
Additional question 3: whether the Tribunal disregarded the applicant’s submission based on Khoh’s Case that a formal search request was not issued in this case and the search did not go down to the filing cabinets level
These matters have already been addressed. Mr Sutton gave evidence that any request he made for a search was formal in the sense that it was issued by the legal directorate. The exhibits to his affidavits show that a numerous search requests in one form or another were issued. The contents of the filing cabinets were not searched in Khoh’s Case; they were discarded. The submissions made by the applicant on Khoh’s Case were dealt with sufficiently by the Tribunal.
Additional question 4: whether the Tribunal denied the applicant procedural fairness by deciding that the statement in GWS5 that Mr Hayes had handed over the blue file to Employee Relations was a misunderstanding by Mr Sutton
Mr Hayes denied that he had ever had the blue file. The Tribunal concluded that Mr Sutton’s note, to the effect that Mr Hayes had given the file to Employee Relations, was a misunderstanding. That conclusion was an obvious way of reconciling the two pieces of conflicting evidence. Accordingly, there was no obligation on the Tribunal to disclose its thought processes to the applicant.
Moreover, the essential question was whether all reasonable steps had been taken to find the relevant files. The Tribunal accepted that searches and enquiries had been undertaken of the Employee Relations area and Mr Hayes’ area. Whether Mr Sutton misunderstood Mr Hayes or not, the Tribunal accepted that all reasonable steps had been taken to find the documents in the relevant areas. Accordingly, it cannot be said that any denial of procedural fairness in relation to the Tribunal’s conclusion that Mr Sutton had misunderstood Mr Hayes could have made a difference to the decision.
Additional question 5: whether the Tribunal denied the applicant procedural fairness by revoking the summons issued to Mr Atkins
The applicant told the Tribunal on 7 March 2007 that the summons issued to Mr Atkins had not been served. It appears that the applicant did not know Mr Atkins’ address. The applicant asked the Tribunal to issue a summons to Mr Atkins. The applicant explained that Mr Atkins would tell the Tribunal that he had taken no action in relation to the applicant’s request dated 24 December 1996. The Tribunal noted that Mr Atkins, and Telstra, were not required to take any action until a valid FOI request was received on 13 February 1998. The Tribunal considered that the evidence proposed to be adduced from Mr Atkins was not relevant to any issue in dispute and rescinded the summons.
In my view, the Tribunal was correct to rescind the summons to Mr Atkins. It was not material that Mr Atkins did not action the request of 24 December 1996. In fact, it was accepted that he did not. The question for the Tribunal was whether all reasonable steps had been taken by the time of the Tribunal’s decision to find the requested documents. On the evidence, the Tribunal concluded that all reasonable steps had been taken by that time. The evidence proposed to be adduced from Mr Atkins was not probative. In any event, the PAB file held by Mr Atkins had been provided to the applicant as part of the legal file.
Additional question 6: whether Telstra failed to search four areas, namely, Telecom Industries, Corporate Catalogue, NSSC & PAB and CATV
Telstra argued that the applicant might not have raised this point before the Tribunal in these terms and it was a point that could have been answered below by evidence. Accordingly, Telstra argued, the court should not entertain the point on appeal. That would be correct, except that the applicant’s whole case was that Telstra had not taken all reasonable steps to locate the relevant documents. If a reasonable step consisted of searching a particular area, it was incumbent on Telstra to take that step, whether the applicant had nominated it or not.
The four nominated areas were areas where the applicant had worked. It seems to be common ground that some of the applicant’s records would have originally been kept in each of the four areas where he worked and some may have been kept in the personnel files of his supervisors in the four areas. However, it is not clear that the relevant documents would have remained in the four areas, such that those areas ought to have been physically searched. Logically, the relevant documents may have been transferred to another area for storage or use. In the case of Telecom Industries, Telstra says that it no longer exists, so it could not be searched as such.
In any event, the evidence sets out the steps that Telstra took to locate the relevant documents. In particular, Mr Sutton’s affidavit sworn on
2 June 2004 sets out the overall approach to the search and many of the steps that were taken to locate the relevant documents. Mr Sutton’s affidavit sworn on 28 June 2004 details in paragraphs 5 to 10 the search of archives and details in paragraphs 11 to 16 his search of the personnel files of the applicant’s managers. That search took three days and was fruitless.
The Tribunal considered the affidavit evidence and the oral evidence that was before it and concluded that all reasonable steps had been taken to locate the relevant documents. The court is unable to go behind that finding, unless there was an error of law leading to it. The applicant has not demonstrated that there was any such error of law. Accordingly, this ground cannot succeed.
Futility
Telstra submitted that, in any event, it would be futile to remit the matter to the Tribunal for two reasons.
The first was that Telstra had already taken all reasonable steps to find the requested documents and they could not be found. That submission does not advance the matter. It assumes that the Tribunal did properly conclude that Telstra had taken all reasonable steps.
The second reason was that the applicant told the Tribunal that he wanted his file so that he could correct any errors in it. However, Telstra submitted that it was no longer subject to the FOI Act and there was no longer any entitlement on the applicant’s part to have his records corrected pursuant to the FOI Act. That may be so. However, where relief is refused on the grounds of futility, it is because the decision on remittal could not be any different. It is not because an applicant may not be able to achieve their objective in the proceedings as they once stated it. That is a matter for an applicant.
Conclusion
In any event, I am not satisfied that the Tribunal made any of the errors nominated by the applicant. Accordingly, the application must be dismissed with costs.
Purported post hearing submission
After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions. It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions. When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave. I did not at that stage read the purported post hearing submissions. The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions. The respondent filed material in response to that application, which was heard on 12 August 2008.
The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem. He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event.
The respondent drew the court’s attention to two authorities, Carr v Finance Corporation of Australia [No 1] (1981) 147 CLR 246 and Stockdale v Alesios (1999) 3 VR 169. In Carr, Mason J (as his Honour then was) said at 257-8:
I should express my dissatisfaction with the way in which the appellants’ case has thus far been presented. … After argument had concluded in this Court lengthy written submissions dealing with issues not hitherto raised and a further affidavit were filed. … The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
More recently, in Stockdale, Phillips JA said at 179:
After the argument on the appeal was concluded counsel for the plaintiffs sent to the court, in augmentation of the written outline earlier supplied for the hearing and his oral argument, a further written submission. This document was delivered without any invitation from the court and on one view it behoved us not to consider it, at least without inviting the defendants to respond. Not only, however, did the defendants respond of their own accord, but the plaintiffs rejoined with yet a further written submission. This is quite unsatisfactory. Unless the court gives leave or otherwise invites the making of further submissions the conclusion of oral argument should be taken to be the end of the matter, save for judgment. Of course that can be no more than a general precept; there will always be exceptions, such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred. But there was nothing like that here. Counsel for the defendants can scarcely be blamed for responding, but the plaintiffs should not have acted so independently without leave of the court. That is only emphasised when I add that the point which the plaintiffs were seeking to develop by their further submission was already within the plaintiffs’ earlier outline of argument….
None of the exceptions mentioned by Phillips JA applies in this case. Nor is there any other circumstance that would warrant the reception of the applicant’s purported post hearing submissions. Having now read them, it is clear that they deal with matters that the applicant could and should have been aware of prior to the commencement of the hearing. He should have made his submissions about them at the hearing. I refuse the applicant leave to rely on the post hearing submissions.
The respondent sought the costs of opposing the application for leave to file post hearing submissions. The applicant did not make any clear argument in opposition. Accordingly, costs should follow the event. The applicant will be ordered to pay the respondent’s costs of the application to file post hearing submissions.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 15 August 2008
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