Duncan v Chief Executive Officer Centrelink
[2008] FMCA 810
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUNCAN v CHIEF EXECUTIVE OFFICER CENTRELINK | [2008] FMCA 810 |
| ADMINISTRATIVE LAW – Appeal against decision of Administrative Appeals Tribunal – appeal on question of law – whether grounds of appeal raise question or questions of law – whether appeal grounds made out. |
| Administrative Appeals Tribunal Act, 1975 (Cth) ss.33, 43AA(1), 44(1), 44AA(1) Federal Court Rules, O 53 r.2 Freedom of Information Act, 1982 (Cth) ss.48 49, 50(1), (2), (3), 55(1), (2), (6), 54(1)(g) and 61(1) Merit Protection Agency (Australian Government Employees) Act 1984 (Cth), s.47 Public Service Act 1992 (Cth) Public Service Regulations (Cth) rr.75, 76, 82, 83, 84 |
| Apthorpe v Repatriation Commission (1987) 13 ALD 656 Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 Birdseye v Australian Securities and Investment Commission(2003) 76 ALD 321 |
| Applicant: | IAN DUNCAN |
| Respondent: | CHIEF EXECUTIVE OFFICER, CENTRELINK |
| File Number: | PEG 146 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 1 November 2007 |
| Date of Last Submission: | 1 November 2007 |
| Delivered at: | Perth |
| Delivered on: | 31 October 2008 |
REPRESENTATION
| Applicant: | In person (by written submissions) |
| Solicitors for the Respondent: | Australian Government Solicitor (by written submissions) |
ORDERS
That the appeal be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 146 of 2007
| IAN DUNCAN |
Applicant
And
| CHIEF EXECUTIVE OFFICER, CENTRELINK |
Respondent
REASONS FOR JUDGMENT
Appeal
The applicant, Mr Duncan, has appealed a decision of the Administrative Appeals Tribunal constituted by Senior Member
Mr S Penglis given on 15 December 2006 in which the Tribunal affirmed the reviewable decision in W2002/409[1]. The Appeal was filed under s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth).[2] The Appeal is the latest in a long line of litigation involving
Mr Duncan and Centrelink.[3]
[1] “Appeal”.
[2] “AAT Act”.
[3] See, for example, Duncan v Hotop & DFACS [2002] FMCA 56; Duncan v Hotop [2004] FCA 274; Duncan v Fayle [2004] FCA 723; Duncan v Administrative Appeals Tribunal (No 2) [2004] FCA 1258; Duncan v Secretary, Department of Family and Community [2007] FCA 507; Duncan v Chief Executive Officer Centrelink [2008] FCA 56; Duncan v Chief Executive Officer Centrelink [2008] FAC 667.
The Appeal was originally filed in the Federal Court. It was transferred to this Court by order of the Federal Court under s.44AA(1) of the AAT Act.
The parties agreed to file and serve written submissions and for judgment to be made on the basis of those written submissions.
Orders sought
Mr Duncan seeks the following orders:
1. An order setting aside the decision of the Tribunal.
2. Such other Orders as the Court thinks appropriate.
3. Costs.
Factual background
This Appeal has its genesis in a conversation on 16 September 1998. Mr Duncan, then employed by Centrelink, had a conversation with
Ms Carol Needham, then a team leader at Centrelink’s Innaloo office. A typed record of the conversation was produced by Ms Needham, and she left an unsigned copy for Mr Duncan on his desk.[4] The Record of Conversation read as follows:
[4] Appeal Papers (“AP”) 69 and 163 (“Record of Conversation”). At AP 96 it is acknowledged by Centrelink that the Record of Conversation was left on Mr Duncan’s desk.
“Ian arrived at work at approximately 8.35am today. As he frequently does not arrive until after 8.30am, I reminded him of the requirement to be in at that time. Ian became somewhat agitated and started talking about me ‘having a go at him’ yesterday for a claim interview that had taken well over an hour. The main gist of his conversation was that there was not enough time to do the interviews. I stated that although he was still getting used to new claims and it would take him longer initially, that he needed to make an effort to reduce the amount of time taken for interviews. Again, he made the claim that it couldn’t be done in the time allotted. I asked him if he was clear about the reduced times for Newstart interviews now that they were being booked in for seminars. He seemed vague about it so I asked if he had read my ccmail message about it last week and he replied that he had. He then said more along the lines of the times being too short. I asked the other new claim staff member if she could do the claims within the time and she replied that she could. I said to Ian that the times were the standard times used by Employment Services and that he should aim to reach that standard also.
It was clear that Ian was not happy with this and he made the comment that he had to stand around waiting for someone to pac his work and indicated that this was made worse because I couldn’t pac his work. I replied that I was not paid to process his work.
The conversation continued in the same vein, with Ian repeating the reasons why he did not think it was possible to process the interviews and claims in the time span. I said again that there was no point in repeatedly stating that it couldn’t be done as it was being done by the other staff and that he had to try and aim towards processing them in the standard times also. Further, that if he was not prepared to do that, he should look for a job elsewhere.
In addition to this, I will send Ian a ccmail stating my expectations of him.
A copy of this was handed to Ian today.”
Mr Duncan did not agree with the content of the Record of Conversation. Mr Duncan wrote to the Chief Executive Office of Centrelink, Ms Sue Vardon, on 26 November 1998 seeking, amongst other things, that Ms Needham be directed to provide Mr Duncan with “an Affidavit attesting the absolute truth of the totality of that document.”[5]
[5] AP 74 and 163.
A response to Mr Duncan’s letter of 26 November 1998 was sent on
4 December 1998by Mr Roger Plant, the Manager of Centrelink’s Human Resources Programmes in Perth. Mr Plant noted that
Mr Duncan had written “in respect of matters to do with your employment, and particularly certain actions of your supervisor.”[6]
Mr Plant’s letter requested additional information from Mr Duncan, and in particular a copy of the Record of Conversation which had not been provided to Ms Vardon.[7]
[6] AP 75 and 164.
[7] AP 75, 163 and 164.
In a letter dated 11 December 1998 Mr Duncan responded to
Mr Plant’s letter of 4 December 1998.[8] In the letter Mr Duncan indicated that:
a)he was providing information (most of which it is unnecessary to set out in these Reasons for Judgment) “in support of my
26 November 1998 request”;[9]b)that he had “complained” to Centrelink’s regional manager “about the actions of Ms Needham in leaving an unsigned note on my desk stating that I ‘should look for a job elsewhere’”;[10] and
c)that he was “happy to submit to polygraph testing” so as “to obtain the objective evidence requested to further expedite this matter”.[11]
[8] AP 76-77.
[9] AP 76.
[10] AP 77.
[11] AP 77.
On or about 12 January 1999 Mr Plant was requested by Ms Vardon to “have a talk to” Mr Duncan about the issues raised in the two letters written by Mr Duncan. Mr Duncan was advised of this by email.[12]
[12] AP 78, 79 and 164.
On 8 March 1999, Mr Chris Perryer, who was with Centrelink’s Media and Community Relations, wrote to Mr Duncan to advise that he had been “asked to conduct an inquiry into the grievance you [Mr Duncan] lodged in respect of the actions of Ms Carol Needham.” Mr Perryer explained that his role was to establish the facts surrounding “your grievance”, and then to make a recommendation to the Delegate.
Mr Perryer wrote that he “would like to talk to you [Mr Duncan] as soon as possible”.[13]
[13] AP 80 and 164-165.
Mr Perryer sought to clarify Mr Duncan’s grievance, and to advise
Mr Duncan of his role, in a telephone conversation on 11 March 1999, in which Mr Perryer notes Mr Duncan as asking “why it had taken so long to action his grievance”.[14]
[14] AP 81 and 165. The date on the note is “11/3/98” but “98” is clearly meant to be “99”.
On 19 March 1999 Mr Perryer sent Mr Duncan a copy of the Record of Conversation signed by Ms Needham.[15]
[15] AP 83. A signed copy of the Record of Conversation is at AP 82.
On 21 March 1999 Mr Duncan wrote to Mr Perryer in response to
Mr Perryer’s letter of 8 March 1999 asking to talk to Mr Duncan as soon as possible. To assist Mr Perryer’s “endeavour to establish the facts” Mr Duncan requested that Mr Perryer provide detailed responses to 26 “preliminary questions” put by Mr Duncan.[16] The nature of the “preliminary questions” can be ascertained from the first five of the
[16] AP 84-86.
26 questions:
“1.Does Ms Needham maintain that a copy of the ‘record of conversation’ dated 16 September 1998 was handed to me on that date, as stated therein?
2.If not, why did Ms Needham state in writing that it was handed to me, when in fact it was left on my desk?
3.For what reason did Ms Needham leave a copy of her ‘record of conversation’ on my desk rather than hand it to me?
4.Why was it unsigned?
5.Is the accuracy of this part of her written comments consistent with the rest of the document?”[17]
[17] AP 84.
Mr Perryer did not address Mr Duncan’s questions, ultimately taking the view that they were “peripheral to the investigation.”[18]
[18] AP 91.
Mr Perryer concluded his investigation into Mr Duncan’s grievance and presented his findings, considerations and recommendations to
Mr Plant in a letter dated 19 April 1999. Mr Perryer recommended
Ms Needham be reminded of the importance of signing and personally delivering documents to her staff, but otherwise considered no further action was necessary.[19]
[19] AP 91-92.
Mr Perryer’s recommendations were accepted by Mr Plant. Mr Plant wrote to Mr Duncan on 7 May 1999 setting out his determination and reasons for decision.[20] Mr Duncan was advised that if he remained aggrieved, he could request, under the terms of regulation 84 of the Public Service Regulations, that the matters be further investigated by the Merit Protection and Review Agency.[21]
[20] AP 93-97 and 166-169.
[21] AP 97 and 169. The Merit Protection and Review Agency (“MPRA”) undertakes such investigations under the provisions of s.47 of the Merit Protection Agency (Australian Government Employees) Act 1984 (“Merit Protection Act”).
Mr Plant’s letter sets out the background in the following way:
“In two items of correspondence sent during November and December, 1998 to the Chief Executive Officer you described a matter by which you were aggrieved, in respect of actions by your supervisor in her approach to the management of your performance.
Particularly, you stated concerns at your supervisor’s manner of supervision in addressing your performance and certain of her actions in respect of this, particularly in placing an unsigned ‘record of conversation’ on your desk.
You protested the accuracy of the contents of that record, the appropriateness of its delivery, and its unsigned nature.”[22]
[22] AP 93.
Then, having referred to Public Service Regulations 76 and 82 as possible bases for investigation of Mr Duncan’s grievance Mr Plant clarified the basis upon which the investigation into Mr Duncan’s grievance took place:
“In formal terms I do not believe that your supervisor took a decision in the meaning of regulation 76 but have accepted, in effect, that you were aggrieved by her action in creating and placing the unsigned document upon your desk.
I have therefore accepted your grievance as appropriate for investigation of an action by your supervisor within the meaning of regulation 82, insofar as it involved the matters which you identified to Mr Perryer as causing you to be aggrieved. These are, as I have noted above those actions by your supervisor in her creation and placement of an unsigned ‘record of conversation’ on your desk.
In summary I have accepted as a matter for investigation under regulation 82 the content of the record, the appropriateness of its delivery, and its unsigned nature.”[23]
[23] AP 94.
Mr Duncan wrote to the Director of the MPRA on 18 May 1999 requesting further investigation of the matters detailed in his letter.[24] On the first page of his letter to the Director of the MPRA Mr Duncan writes as follows:
[24] AP 99-100 and 169.
“In accordance with the provisions of section 47 of the Merit Protection (Australian Government Employees) Act 1984, I request a further investigation of the matters detailed below. I remain aggrieved by the following (numbered) actions:
I refer to the attached copy of a document dated 7 May 1999 from Mr Plant which states ‘You protested the accuracy of the contents of that record, the appropriateness of its delivery, and its unsigned nature…………………………… :
I requested Mr Perryer on 6 March to investigate your complaint and, on his advice, accepted the matters identified above as valid for grievance investigation purposes within the meaning of regulation 82 later that month.’
1.That there was no evidence of investigation of actions in accordance with relevant Public Service Regulations into the ‘accuracy of the contents.’
2.That there was no reference to Mr Perryer’s findings with respect to the ‘accuracy of the contents.’
3.That there was no reference to Mr Perryer’s recommendations with respect to the ‘accuracy of the contents.’
4.That the comments throughout, in particular the section ‘Consideration/reasons for my decision – contents of the record’ are unrelated, in terms of a satisfactory response, to the substance of my grievance.
5.That the conclusion to the section on ‘content of the record’ refers to the supervisor’s authority to generate the ‘record of conversation.’ This was not an aspect of my grievance. The decision, therefore, to ‘disallow this aspect of your grievance’ meaning that relating to the entire content of the record, on this basis, is no more than a creative non-sequitur rationalization.”[25]
[25] AP 99.
In a letter to Ms Vardon on 14 June 1999[26] Mr Duncan described “the matters of concern … [as] far from resolved.”[27]
[26] AP 106-109.
[27] AP 106.
On 14 June 1999 Mr Duncan wrote to Ms Vardon. He referred to his letter to her of 26 November 1998, and then wrote as follows:
“It is interesting how a reasonable request for documents has been contrived into a small mickey mouse enquiry with no consideration of the implied grievance, no consideration of the facts, and to date, a failure to provide me with any answers.”[28]
[28] AP 110.
A review was conducted by the MPRA. Its conclusions were reported to Mr Duncan in a letter dated 9 July 1999. The MPRA review concluded that Centrelink had addressed the issues raised by
Mr Duncan, with the exception of minor administrative matters.[29]
[29] AP 112-114 and 169.
Mr Duncan wrote to Ms Vardon on 28 July 1999 and 6 October 1999 concerning the investigation of his grievances by Centrelink and MPRA. Mr Duncan asserted that he did not request and there was no investigation under regulation 83 of the Public Service Regulations.[30]
[30] AP 118-122.
In an undated letter from Ms Vardon received by Mr Duncan on
10 November 1999Ms Vardon responded to Mr Duncan’s letters of
28 July 1999and 6 October 1999.[31]
[31] AP 123-124 (“Undated Letter”) and 170-171.
On 26 March 2002 Mr Duncan applied to Ms Vardon, under ss.48 and 49 of the Freedom of Information Act, 1982 (Cth)[32] for amendment to personal information contained in various documents including the Undated Letter.[33] Ms Vardon wrote that she was unable to comment on the actions of another agency, the MRPA.[34] Having summarised the investigative actions of Centrelink, Ms Vardon expressed the view that the procedures followed “… appear to me to have been validly based upon the relevant regulations.”[35] She concluded by saying that it was inappropriate to comment further as she understood the matter was before the Federal Court, and was also to be considered by the Industrial Relations Commission.
[32] “FOI Act”.
[33] AP 10-16 and 171-172.
[34] AP 123.
[35] AP 124.
A Centrelink Freedom of Information Officer[36] decided on 16 May 2002 not to amend Mr Duncan’s file. Rather, Mr Duncan was offered the opportunity to annotate his file, so as to include his opinion in each case stapled to each original folio.[37]
[36] “FOI Officer”.
[37] AP 17-18 and 172.
On 13 June 2002 Mr Duncan requested a review of the decision of the FOI Officer.[38]
[38] AP 19 and 172. The review was requested pursuant to s.54(1)(g) of the FOI Act.
A Centrelink FOI Review Officer, Mr Ian Guthrie, reviewed the FOI Officer’s decision. Mr Guthrie upheld the original FOI decision.
Mr Duncan was advised of this by letter dated 11 July 2002 from
Mr Guthrie.[39]
[39] AP 21 and 172.
Mr Duncan appealed Mr Guthrie’s decision to the Administrative Appeals Tribunal.[40] The matter was heard on 22 November 2006 by Senior Member Penglis of the AAT. A decision affirming the reviewable decision dated 11 July 2002 was made on 15 December 2006.[41] Relevant aspects of the AAT Decision are set out below.[42]
[40] “AAT”.
[41] “AAT Decision”. Certain errors in the Tribunal’s Reasons for Decision were corrected by a direction under s.43AA(1) of the AAT Act made on 23 January 2007. AP 162-187.
[42] See para. 32 and following.
It was from the AAT Decision made on 15 December 2006 that
Mr Duncan appealed to the Federal Court, which matter was transferred to this Court, as described above.[43]
[43] See para.2 above.
AAT Decision
The matter for determination by the AAT was whether a statement in the Undated Letter, indicating that Mr Duncan’s grievance had been accepted, investigated and determined in accordance with reg.83 and a right of referral exercised under reg.84, was incorrect or misleading within the meaning of the FOI Act.
The AAT Decision dealt with a previous decision of the AAT on very similar subject matter in which the AAT, differently constituted, dealt in particular with issues arising from the Undated Letter (referred to in the AAT Decision as the Letter) and the nature of Mr Duncan’s grievance. In the AAT Decision the following was said:
“Previous Decision of Tribunal
23.This is not the first time the Letter has been the subject of an application before the Tribunal. In this regard I refer to the Decision and Reasons for Decision of Deputy President Hotop (then Senior Member of the Tribunal) in WAU & Chief Executive Officer, Commonwealth Services Delivery Agency (Centrelink) (W2000/79). In that matter the Tribunal was concerned with, amongst other things, the following parts off the Letter:
· ‘You have commented on Centrelink’s examination of the grievances which you lodged and which were accepted as valid within the meaning of the Public Service Regulations’
· ‘Your grievance was investigated in accordance with the relevant ‘grievance regulations’ (Regulation 75 to 83)’.
· ‘Your grievance matters were accepted as valid within the meaning of Regulation 82 by Roger Plant’.
24.As to those parts with the Letter, the Deputy President held as follows (pages 10 and 11)
· ‘The first relevant passage does not state that the applicant lodged a grievance under reg 83 of the Public Service regulations. It refers merely to ‘the grievances which [the applicant] lodged…’. The word ‘grievance’ is defined in The Macquarie Dictionary to mean:
“a wrong, real or fancied, considered as grounds for complaint’
· The applicant’s 2 relevant letters to the respondent in November and December 1998 were letters of complaint and their receipt by the respondent did, therefore, constitute the lodgement of ‘grievances’ (as that word is generally understood). The passage then goes on to state that those ‘grievances…were accepted as valid within the meaning of the Public Service Regulations’. That statement, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
· Likewise, the second relevant passage, as confirmed by Mr Plant in his evidence, accords precisely with the facts (of which he has first-hand knowledge).
· The third relevant passage is also factually accurate, for the same reasons as were given above in relation to the first passage.
25.By reason of the decision of the Deputy President, the respondent, prior to the hearing of this application, applied for an order dismissing the application on the basis that it was seeking to reopen maters which had previously been agitated before and determined by the Tribunal. I declined to make the order sought by the respondent, but on 14 June 2006 I did direct pursuant to s33 of the Administrative Appeals Tribunal Act, 1975 (Cth) (AAT Act) that ‘the hearing of the Application will exclude all matters determined by the Tribunal in the matter …W2000/79’
EFFECT OF PRIOR DECISION UPON THIS APPLICATION
26.Mr Corbould, counsel for the respondent, submitted that, having regard to the matters raised in this application, the matters determined by the Deputy President in W2000/79 and the direction I made on 14 June 2006, there are no grounds by which the applicant can now contend that the Paragraph was … ‘incorrect’ and/or ‘misleading’.
27.In W2000/79, the Deputy President determined, amongst other things, that:
·The applicant lodged a grievance with Centrelink, albeit not a ‘grievance’ within the meaning of regulation 82.
·Notwithstanding that it was not the applicant’s intention to lodge a grievance pursuant to the Public Service Regulations, the applicant’s grievance was ‘accepted as valid’ and ‘investigated in accordance with the relevant ‘grievance regulations’, namely Regulations 75 to 83 of the Public Service Regulations.
28.Given that, and having regard to the direction I made on 14 June 2006, it follows that the hearing of this application must exclude those matters.
29.I therefore conclude that it is not open for the applicant to agitate before me, or for me to consider in this application, whether or not the following portion of the paragraph was ‘incorrect’ and/or ‘misleading’, namely that ‘the grievance was accepted (and) investigated in accordance with Regulation 83’.
30.However, I do not consider the balance of the Paragraph, namely ‘the grievance was … determined in accordance with regulation 83, and subsequently you exercised your right of further referral to the MPRA for further investigation in regulation 84’ to being matters determined by the Tribunal in W2000/79. Accordingly, they are matters which the applicant may agitate in this application and which I must consider and determine.
31.Also, for the sake of completeness I propose to consider and make findings with respect to the matters I have held be excluded from this application in the event that others take a different view as to my conclusions in that regard.” [44]
[44] AAT Decision paras.23, 24 and 25-31; AP 177-179.
The AAT Decision also dealt with the meaning of “misleading” as it appears in the FOI Act. The AAT Decision says as follows:
“THE MEANING OF ‘MISLEADING’
36.I see no reason why the word ‘misleading’ as it appears in the FOI Act ought be given a meaning other than its ordinary and commonly understood meaning. Indeed, I did not apprehend either party before me to suggest otherwise.
37.Nevertheless, the applicant referred to Chapter 6 of Centrelink’s FOI Manual, in which, at paragraph 6.170, the following definition appears for the words ‘misleading’ in the context of the FOI Act:
‘misleading- information can be said to be misleading if it could lead a person into error, or made, although literally true, convey another ‘untrue’ meaning, or if it could mislead any ordinary person who might be expected to read it but not a specialist reader. For example, terminology or jargon which is used by Centrelink officers may have an obvious meaning for them but a completely different meaning for a client’.
38.What the words means is a matter of statutory interpretation: it is not governed by whatever might appear in Centrelink’s FOI Manual. Notwithstanding, what appears in Centrelink’s FOI Manual certainly falls within what I consider to be the proper construction of the word ‘misleading’ in the FOI Act, (and I note that, when specifically asked by the Tribunal, counsel for the respondent did not disagree). paras. 36-38 of AAT decision as quote.”[45]
[45] AAT Decision paras.36-38; AP 180.
The AAT Decision summarises the evidence before the AAT. That evidence is contained in the Appeal Papers.
The AAT Decision then goes on to make findings, relevantly as follows:
“FINDINGS
| 43. | It is clear that the applicant had a "grievance". It is equally clear that when the applicant communicated his "reasons" to his superiors, it was not and not intended by the applicant to be the making of a "grievance" pursuant to regulation 83. |
| 44. | The evidence before the Tribunal, namely the correspondence to which I have referred in the "Background" section of these Reasons, lead to the inevitable conclusion that the applicant’s "grievance" "was accepted, investigated and determined (by Centrelink ) in accordance with regulation 83". |
| 45. | The evidence also clearly establishes that, by his letter to MPRA dated 18 May 1999, the applicant, subsequent to Centrelink ’s determination in accordance with Regulation 83, "exercised (his) right of further referral to the MPRA for further investigation under regulation 84" |
| 46. | I therefore find that the respondent has overwhelmingly discharged the onus upon it to show that no part of the Paragraph is incorrect. |
| 47. | As to whether or not any part of the Paragraph is misleading, the applicant’s submissions were to the effect that the paragraph implied or inferred: |
| • The applicant had made a grievance in accordance with regulation 83, when he had not; | |
| • The grievance had been investigated and determined in strict accordance with the Act and Regulations, when it had not; | |
| • a valid referral to the MPRA with respect [to] a "right" to do so, which was strictly … speaking [not] correct because: | |
| (a) as a result of the matters to which I have referred, there was no investigation or determination in accordance with regulation 83, and therefore the "right" under regulation 84 had not arisen; and/or | |
| (b) there was no "investigation under regulation 84" because MPRA had not complied with regulation 85. | |
| 48. | Is the Paragraph misleading within the meaning of the FOI Act because it does not state that although accepted, investigated and determined in accordance with the regulations, it was not one that the applicant had made or intended to make under the regulations. I think not. I do not believe an ordinary person reading the Paragraph, or indeed a person who is intimately familiar with the detailed machinations of the regulations, would turn their mind to the question of whether or not the grievance was in fact one made or intended to be made under the regulations and conclude from the Paragraph that is was. |
| 49. | I do accept, however, that the words "in accordance with regulation 83" convey a meaning greater than that which would have been conveyed if words such as "pursuant to" or "under" regulation 83 had been used. I consider the words "used in accordance with" give rise to the inference that the acceptance, investigation and determination of the "grievance" was carried out pursuant to Regulation 83 and in accordance with its terms; see Callaghan and Secretary, department of Family Community Services (2000) AAT 907 ; Robert La and federated Furnishing Trade Society of Australasia (1993) 112 ALR 137. I therefore substantially accept the applicant’s submissions regards. |
| 50. | However, I am satisfied that the respondent has established on the evidence that the acceptance, investigation and determination of the "grievance" was "in accordance with regulation 83". I consider the word "investigate" where used in regulation 83 (3) should be given its natural and ordinary meaning. I do not accept the applicant’s submission that an investigation necessarily must include contact with the applicant (although, without such contact, it may well be that the quality of the investigation may be open to criticism). In any event, I find as a fact that the applicant was contacted during the course of the investigation, both in writing and by telephone; see paragraphs 4, 5, 6 and 8.in the "background" section of these Reasons.”[46] |
[46] AAT Decision paras.43-50; AP 182-183.
The AAT Decision then deals with the referral of the matter to the MPRA by Mr Duncan and in that respect concludes as follows:
| “57. | Accordingly, whether or not the investigation was carried out properly (or at all) I find to be irrelevant to a consideration of whether or not the applicant exercised his right of further referral to the MPRA for further investigation under regulation 84. Whether there was an investigation as required by regulation 85, or if there was, whether it was deficient in any way, cannot cause the relevant words of the Paragraph (which are solely concerned with the exercise of the right of referral) to be "misleading" on any definition of that word. ”[47] |
[47] AAT Decision para 57; AP 185.
The AAT Decision concludes as follows:
“58.I therefore conclude that the respondent has discharged the onus upon it of establishing that the Paragraph is not, either in whole or in part, ‘incorrect’ or ‘misleading’.”[48]
[48] AAT Decision para. 58; AP 185.
Legislation
Section 44 of the AAT Act provides:
Appeal on question of law
(1) A party to a proceedings before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
The relevant provisions of the FOI Act are as follows:
“48 Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act of otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b) that has been used, is being used or is available for use by the agency of Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister
50(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may make the amendment.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i) specifying the respects in which the agency of Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date – setting out such information as is required to bring the information up to date.
(3) To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the test of the record as it existed prior to the amendment.
55(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
...
(g) a decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
(2) Subject to subsection (3), where, in relation to a decision referred to in subsection (1), a person is or has been entitled to apply under section 54 for a review of the decision, that person is entitled to make an application under subsection (1) in relation to that decision, but may make such an application in respect of the decision made on such a review.
...
(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a)the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(c) the amendment relates to a record of an opinion to which neither of the following applies:
(i) the opinion was based on a mistake of fact;
(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
61(1) Subject to subsection (2), in proceedings under this Part, the agency or Minister to which or to whom the request was made has the onus of establishing that a decision given in respect of the request was justified or that the Tribunal should give a decision adverse to the applicant.”
The relevant provisions of the Public Service Regulations made under the Public Service Act 1992 (Cth) are as follows:
| “22. | The relevant provisions of the Public Service Regulations made under the Public Service Act, 1992 (Cth) are as follows. |
Division 3 Investigation of grievances by the Agency
82 Application of Division 3This Division applies to:
(a) an action taken in relation to an officer other than:
(i)classifying an office;
(ii) fixing the rate of alary applicable to an office;
(iii) fixing the conditions of service or employment of officers, in so far as those conditions are set out in, or under, a law of the Commonwealth, otherwise than applying those conditions to the officer;
(iv) an action arising under the Australian Security Intelligence Organisation Act 1979, the Compensation (Commonwealth Government Employees) Act 1971 or the Superannuation Act (1976);
(v)an action in respect of which the officer has the Act, the Commonwealth Employees (Redeployment and Retirement) Act 1979 or these regulations (other than this Division) a right of review or appeal, whether or not that right has been exercised;
(vi)the annulment of the appointment of the officer under section 47 of the Act;
(vii) refusal to permit under section 52 of the Act the officer to decline a promotion or transfer under that section;
(viii) the appointment, promotion or transfer of a person to an office to which the officer had applied to be promoted or transferred; and
(ix) dispensing with, under section 82AH of the Act, the services of the officer; and
(b) an action taken in relation to an officer that is part of the procedure adopted for the purpose of an action referred to in subparagraph (a) (v), (vi), (vii), (viii) or (ix) taken in relation to the officer;
but does not apply to a decision to which Division 2 applies.
83 Investigation by the relevant authority
(1)An officer aggrieved by an action to which this Division applies taken in relation to the officer may request the relevant authority to investigate the action.
(2) A request under subregulation (1) by an officer for investigation of an action taken shall:
(a) be in writing
(b) describe the action;
(c) set out the reasons why the officer is aggrieved by the action; and
(d) be furnished:
(i) in the case of an action that concerns the conduct of the supervisor of the officer – to the relevant authority; or
(ii) in any other case – to the supervisor of the officer who shall, as soon as practicable, refer the request to the relevant authority.
(3) As soon as practicable after receiving a request under subregulation (1) to investigate an action taken in relation to an officer, the relevant authority shall:
(a) investigate the action in any manner that the authority think fit; and
(b) cause the officer to be advised of the results of the investigation, of any decision of that authority consequent upon the investigation and of the reasons for that decision.
(4) For the purposes of an investigation under this regulation by the relevant authority into an action taken in relation to an officer, that authority may request any person, including the officer, to provide information or documents to the action.
(5) After 21 days after an officer has under subregulation (2) furnished to the relevant authority or to the supervisor of the officer, as the case require, a request for investigation of an action, the officer, may in writing, request the Agency to do either or both of the following:
(a) request that authority to state how far that investigation has progressed;
(b) request that authority to expedite that investigation.
(6) As soon as practicable after receiving a request under subregulation (5), the Agency shall comply with that request.
(7) The relevant authority shall, not later than 10 days after receiving a request under subregulation (5) concerning an investigation by that authority of an action, notify the Agency of the extent of the progress of that investigation.
84 Investigation by the Agency
(1) For the purposes of section 47 of the Merit Protection Act, application may be made to the Agency for the investigation, in accordance with Division 4 of Part II of that Act, of an action to which this Division applies taken in relation to an officer that has been investigated by the relevant authority under regulation 83 if the officer remains aggrieved by the action.
(2) An application under subregulation (1) for investigation of an action shall:
(a) be in writing;
(b) be addressed to the Director;
(c) describe the action;
(d) set out the reasons why the application is made; and
(e) be furnished to the relevant authority with a request that that authority furnish the application to the Director.”
Question of law and grounds of appeal
A question of law
Although the respondent has raised no objection to the appeal grounds ultimately relied on by Mr Duncan, it is necessary for the Court to consider whether each of them is a question of law,[49] because the question of law is no mere qualifier, but the subject matter of the appeal itself.[50]
[49] Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 at 323-324 (“Birdseye”).
[50] TNT Skypak International (Aus) Pty Ltd v FCT (1988) ALR 175 at 178 (“TNT”)
A question of law includes, but is not necessarily limited to:
a)whether a particular section of an Act was properly construed and if on that proper construction, whether the decision maker was obliged to take into account certain considerations;[51]
b)whether there was any evidence of a particular fact[52] (where the finding about that fact formed part of the basis for the decision)[53] or in other words, the fact was significant to, or affected, the decision maker’s decision;[54] and
c)whether the decision could not be reasonably inferred from the facts before the decision maker.[55]
[51] Birdseye at 325-326.
[52] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[53] Birdseye at 327.
[54] Birdseye at 327-328.
[55] Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at page 521 (“Lambroglou”).
A question of law is not:
a)a question that asks for an inquiry into whether the decision maker has committed an error of law;[56]
[56] Birdseye at 322 per Branson and Stone JJ. The purported question of appeal in Birdseye was ‘[w]hether the Tribunal has committed an error of law in determining not to extend the time within which Mr Duncan might apply for review (on the merits by the Tribunal) of the respondent’s decision’ at 6.
b)a mere assertion that the decision maker erred in law;[57]
[57] Lambroglou at 524.
c)the grounds relied on in support of the order sought;[58]
d)a question where the answer could not affect the decision of the decision maker;[59]
e)a question which asks what is the meaning of an ordinary English word;[60]
f)a question about whether a “a particular set of facts comes within the description of …a word or phrase’;[61] or
g)assertions that a decision was against the evidence and the weight of the evidence.[62]
Furthermore:
a)there is no error of law simply in making a wrong finding of fact’;[63]
b)an “immaterial error of law will not vitiate the AAT's decision”;[64] and
c)the failure to take into account certain pieces of evidence is not failure to account for a relevant consideration.[65]
[58] “Grounds in support of that order would properly assume the resolution of the question of law in favour of the applicant and indicate in a summary was the reasons why that resolution requires the decision of the AAT to be set aside. Of necessity, properly drawn grounds of that kind could not elucidate the question of law.” Lambroglou at 524.
[59] Birdseye at 327. The question that was at best found to be mixture of a question of fact and law was ‘whether the Board’s decision would remain in force and remain unchallengeable even if the respondent’s decision were set aside’. This was because even if the question was answered in favour of the applicant, it would not reveal an error affecting the Tribunal’s decision.
[60] Girls’ Public Day School v Ereaut [1931] AC 12 at 25, 28; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 and McQuaker v Goddard [1940] 1 KB 687 cited in Labroglou at 520.
[61] Girls’ Public Day School v Ereaut [1931] AC 12 at 35; Attorney General for the Isle of Man v Moore [1938] 3 All ER 263 at 267 cited in Labroglou at 520.
[62] Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD.
[63] Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J cited in Lambroglou at 523.
[64] BTR Plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 26 ALD 1 at 7; 106 ALR 35 at 42.
[65] Walsh v Dept of Employment, Education, Training and Youth Affairs (1998) 51 ALD 690.
The questions of law and grounds in support of those questions of law raised on the appeal and set out hereunder.
Was a relevant question of law raised on appeal?
There were originally 12 “questions of law” in the amended appeal notice. Only two questions of law were finally argued.
Form of the question of law
The relevant question of law must be stated in the notice of the appeal, which is different from the grounds of appeal.[66]
[66] O 53 R 2 Federal Court Rules, Lambroglou at 524 per Ryan J.
The question of law to be raised on the appeal must be stated with precision as a pure question of law[67]
[67] Birdseye at 325 and 327.
Question 3 and grounds
Question 3 is as follows:
3.Was Mr Guthrie’s decision that “the grievance was … determined in accordance with Regulation 83” was not ‘incorrect’ or ‘misleading’ justified by the respondent at the Tribunal?
The grounds in support of question 3 as set out in the Appeal are as follows:
At para 27 the Tribunal relies on the fact that in W2000/79, Senior Member Hotop determined that the applicant had not lodged a grievance within the meaning of Regulation 82. At para 43 Senior Member Penglis unequivocally makes the finding that “it was not … a ‘grievance’ pursuant to regulation 83.” This was not an unreasonable finding given the applicant’s comprehensive evidence that there was no compliance with any of the subsections of Regulation 83 whatsoever, and the fact that Centrelink offered absolutely no evidence of the existence of any grievance “in accordance with Regulation 83.”
Logically if the Tribunal accepted that there was no grievance “within the meaning of regulation 82,” and established on the evidence before it that “it was not … a ‘grievance’ pursuant to regulation 83” then no grievance whatsoever existed that could subsequently be investigated or determined in accordance with Regulation 83.”
Yet at para 50 the Tribunal concludes “However, I am satisfied that the respondent has established on the evidence that the acceptance, investigation and determination of the “grievance” was “in accordance with regulation 83”. Clearly, the facts determined by the Tribunal contradict it’s decision. Thee was an error of law in that no reasonable person could draw that conclusion given it’s finding of fact that “it was not … a ‘grievance’ pursuant to regulation 83”.
This “question of law” is not a question of law at all. It is rather a query as to whether the decision reached by the FOI Review Officer was justified by the respondent at the Tribunal. At best that is a mixed question of law and fact, and therefore not a question of law.[68] At worst, it is simply an application for a review of the merits and not a question of law at all. Even if it is a question of law, no error of law has been identified and there was ample evidence before the AAT to justify its view that there was nothing incorrect or misleading in the FOI Review Officer’s decision that the grievance was determined in accordance with reg.83.
[68] Birdseye at 326.
Mr Duncan’s submissions proceed on an erroneous assumption, namely, that the AAT made an unequivocal finding that there was not a grievance pursuant to reg.83 of the Public Service Regulations[69] and that therefore no grievance existed.
[69] Mr Duncan’s submissions at para.37 citing AAT Decision at para.43, AP 182.
The AAT did not make such an unequivocal finding. Rather, it relied upon the earlier finding that there was a grievance, and made a further finding that there was a grievance under reg.83 notwithstanding that Mr Duncan did not, and did not intend, what he wrote to constitute a grievance.
This is also not a case in which there was no evidence on which a finding that there was a grievance could be made. Much of that evidence was drawn from words penned by Mr Duncan, or said to him. Mr Duncan applied to the MPRA for a review, because he “remained aggrieved” by certain actions.[70] In the actions referred to he describes comments unrelated “to the substance of my grievance” and further says that a conclusion reached was “not an aspect of my grievance.”[71] Those comments were made on 18 May 1999. Less than a month later, having referred specifically to his correspondence to Ms Vardon of
26 November 1998where he wrote to complain about the Record of Conversation, he tells Ms Vardon that the enquiry had no consideration of his “implied grievance”.[72] Otherwise, there is more than enough evidence to demonstrate that the respondent considered the matter to be a grievance, and told Mr Duncan so at the time.[73]
[70] AP 99.
[71] AP 99.
[72] AP 110.
[73] See generally the outline of facts referred to above at paras.5-30, with a similar outline of facts appearing in the “Background” in the AAT Decision.
Question 12 and grounds
Question 12 is as follows:
12.Did the Tribunal apply a reasonable definition of ‘misleading’?
The grounds in support of question 12 as set out in the Appeal are as follows:
At para 48 the Tribunal makes the finding that:
“I do not believe an ordinary person reading the Paragraph, or indeed a person who is intimately familiar with the detailed machinations of the regulations, would turn their mind to the question of whether or not the grievance was in fact one made or intended to be made under the regulations and conclude from the Paragraph that it was.”
In the applicant’s submission if one surveyed a hundred ‘ordinary persons’, not one would believe that the investigation and determination of a matter ‘in accordance with’ Public Service Regulation 83, being legislation of the Commonwealth of Australia, did not imply that an application had first been lodged ‘in accordance with’ Reg 83. There was an error of law in that the Tribunal relied on a question of fact regarding ‘an ordinary person’ and there was no evidence of that fact. In addition, it is a finding that no reasonable person would make.
Applying the reasoning in Lambroglou, the question asked is a question of fact and is therefore a question for the AAT, and one which cannot be appealed as a question of law. It is only a question of law if the Applicant shows that any inference by the Tribunal was not possible in the circumstances.
In any event, the AAT did apply a reasonable definition of misleading. The meaning that the AAT said it would apply,[74] and in the Court’s view, did apply, was the ordinary meaning of “misleading”.[75]
[74] AAT Decision at para.36; AP 180.
[75] See AAT Decision at para.49; AP 183.
The fact that Mr Duncan takes a view that a different conclusion ought to have been reached based on that definition is irrelevant. That view does not raise a question of law to be determined in this appeal, but rather a difference of view as to the appropriate factual conclusion which ought to have been reached by the AAT. The fact that this Court might, or another AAT differently constituted might, have decided the matter differently is immaterial, for as pointed out above[76] there was more than adequate material on which the AAT could legitimately arrive at the conclusion that it did with respect to the matters in issue.
[76] See para.52 above.
It also does not matter that there is no evidence of the view of an ordinary person. These are not matters determined by evidence. The question which was asked is to be resolved by the AAT considering the word in its context, and having regard to its ordinary meaning, with the assistance of such texts and authorities as it sees fit to consult.[77]
[77] Lambroglou at 520.
Finally, the Court reiterates that, on the facts before the AAT, there cannot have been anything misleading so far as Mr Duncan was concerned because the evidence that there was a grievance fell in part from his own pen, and in part from what he was told at the time (and at that time it would seem without demur) by the respondent.
Conclusions and Orders
It follows from the foregoing reasons that there will be an order that the appeal will be dismissed because:
a)it does not raise a question of law; and
b)even if the questions raised are questions of law the grounds of the appeal are not or can not be made out.
The Court will hear the parties as to costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 31 October 2008
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