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Chu v Telstra Corporation Ltd

Chu v Telstra Corporation Ltd

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FEDERAL COURT OF AUSTRALIA
Chu v Telstra Corporation Limited [2005] FCA 1730
ADMINISTRATIVE APPEAL – appeal from decision of Administrative Appeals Tribunal – refusal of access to personnel files – s 24A Freedom of Information Act 1982 (Cth) – preliminary question - whether “all reasonable steps” is a jurisdictional fact
ADMINISTRATIVE APPEAL – appeal from decision of Administrative Appeals Tribunal – numerous requests for access to personnel file – access refused on the basis that no further documents could be located – interpretation of s 24A – whether respondent took all reasonable steps – whether Tribunal applied the correct test in determining what constitutes “all reasonable steps”
Freedom of Information Act 1982 (Cth) s 24A
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 cited
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 followed
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 205 ALR 1 cited
Cabal v Attorney-General (2001) 113 FCR 154 considered
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 cited
Santa Sabina College v Minister for Education (1985) 58 ALR 527 cited
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550 cited
RICHARD CHU v TELSTRA CORPORATION LIMITED
No VID 1443 of 2004
FINN J
ADELAIDE
1 DECEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1443 OF 2004

BETWEEN:

RICHARD CHU
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

1 DECEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application be allowed.
2.The decision of the Administrative Appeals Tribunal dated 28 October 2004 be set aside.
3.The matter be remitted to the Tribunal for re-determination.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1443 OF 2004

BETWEEN:

RICHARD CHU
APPLICANT

AND:

TELSTRA CORPORATION LIMITED
RESPONDENT

JUDGE:

FINN J

DATE:

1 DECEMBER 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

The conduct of Telstra Corporation Ltd (“Telstra”) in the events giving rise to this application, was an understandable source of frustration for the applicant, Richard Chu. Likewise, the reasons of the Administrative Appeals Tribunal (“the Tribunal”) impugned in the application provide reason for pause. Suffice it to say at the outset that they betray an error of law.
The application challenges a decision of the Tribunal affirming a decision of Telstra under s 24A of the Freedom of Information Act 1982 (Cth) (“the FOI Act”) to refuse Mr Chu access to his personal and personnel files that had not previously been provided to him.
Section 24A, insofar as presently relevant, provides:
“Requests may be refused if documents cannot be found or do not exist
An agency or Minister may refuse a request for access to a document if:
(a)all reasonable steps have been taken to find…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1730
Decision Date: 1 DECEMBER 2005

CaseChat Overview and Summary

The case of Chu v Telstra Corporation Ltd involved an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The applicant, Mr. Chu, sought review of a decision by the AAT which had dismissed his appeal against Telstra Corporation Limited's refusal to provide certain documents under the Freedom of Information Act. The primary legal issue before the court was whether the AAT had correctly applied the requirements of section 24A of the Act in assessing whether Telstra had taken all reasonable steps to locate the requested documents. The court had to consider the scope and nature of the steps that an agency must take under section 24A, and whether the AAT had properly evaluated the reasonableness of the steps taken by Telstra in this case.

The court examined Telstra's submissions regarding the meaning of "reasonable steps" and noted that the AAT had referred to previous decisions that suggested that the steps required need not be exhaustive. The court inferred that the AAT had relied on these authorities in reaching its conclusion that Telstra had satisfied the all reasonable steps requirement. However, the court found that the AAT had not sufficiently considered the purpose for which Mr. Chu had requested the documents, a factor relevant to assessing the reasonableness of the search conducted by Telstra. The court concluded that the AAT had erred in its interpretation and application of section 24A, and that the decision should be set aside and the matter remitted for re-determination.

The orders made by the court were that the application for judicial review be allowed, the decision of the AAT dated 28 October 2004 be set aside, and the matter be remitted to the AAT for re-determination in light of the court's findings. This outcome underscored the importance of properly considering all relevant factors in assessing whether an agency has fulfilled its obligations under section 24A of the Freedom of Information Act.

Orders

Orders of the court

1. The application be allowed.

2. The decision of the Administrative Appeals Tribunal dated 28 October 2004 be set aside.

3. The matter be remitted to the Tribunal for re-determination.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN J

Mr P Boland, the Group Manager of Telstra’s Payroll Services, also gave evidence before the Tribunal. He indicated that it is standard practice for an employee’s file to follow him in his placement throughout the corporation. He could not guarantee that the applicant’s file had in fact been transferred as required. Mr Boland claimed to have made enquiries with the State Manager and Human Relations Manager regarding the applicant’s file and felt he had exhausted all areas in the search. THE TRIBUNAL’S REASONING AND DECISION The Tribunal did not indicate expressly what it considered to be the burden of the all reasonable steps requirement in reaching its conclusion on the review. It set out submissions by Telstra on this matter under the heading “Submissions”. It appears, though, from the manner in which it dealt with previous Tribunal decisions on s 24A that it adopted and acted upon the following three paragraphs of its account of Telstra’s submissions:“19.In Re Cristovao and Secretary, Department of Social Security (1998) 53 ALD 138, Deputy President McDonald stated at paragraph 19:‘(19) The requirements of s 24A of the FOI Act are twofold, namely, reasonable steps must have been taken to find the document and that the document is in the possession of the agency but cannot be found or, alternatively, does not exist. … The Shorter Oxford English Dictionary provides five meanings for the word “reasonable”, of which the following is, in the opinion of the tribunal, most “appropriately applied”: … 4. Not going beyond the limit as signed by reason; not extravagant or excessive; moderate.’20.Deputy President Forgie has considered this question in several cases and concluded that the first limb in s 24A requires that the agency take such steps as to discover the requested documents as are appropriate in these circumstances (re Simmons and Secretary, Department of Defence (2000) AATA 491, paragraph 48; re Langer and Telstra Corporation Limited (2002) AATA 341, paragraph 95; re Meschino and Centrelink (2002) AATA 611, paragraph 22).21.The respondent submitted that the steps required to be taken generally do not have to be exhaustive (re Viewcross Services Pty Ltd and Telstra Corporation Limited [2003] AATA 1025; re Beesley and Federal Commissioner of Taxation (2001) AATA 476, paragraph 69).” I also infer from what the Tribunal said in its conclusions about Mr Chu’s failure to give reasons for his request for documents, that it relied as well on the following Telstra submission as to a particular “consideration” necessary to “be made” in assessing whether a search has been reasonable in a particular case. This was:“… the purpose for which the request for documents was made (re Mester and Centrelink (2004) AATA 354, where Senior Member Dwyer stated ‘… under s 24A of that Act, the reasons for requesting documents provides information relevant to a consideration of the reasonableness of further steps which may be proposed to find further documents’).”

Ratio Decidendi

Legal Principle Established

Established by: FINN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1443 OF 2004

BETWEEN:	RICHARD CHU APPLICANT
AND:	TELSTRA CORPORATION LIMITED RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	1 DECEMBER 2005
WHERE MADE:	ADELAIDE

JUDGE:	FINN J
DATE:	1 DECEMBER 2005
PLACE:	ADELAIDE