Fitzgerald and CEO Family Court of Australia

[2001] AATA 150

DECISION AND REASONS FOR DECISION [2001] AATA 150

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2000/928

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      GRANT FITZGERALD     
  Applicant
           And    CHIEF EXECUTIVE OFFICER FAMILY COURT OF AUSTRALIA
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date28 February 2001 

PlaceBrisbane

Decision      Being satisfied the Tribunal does not have jurisdiction the application for review will be removed from the list of applications awaiting hearing.        
  .     (Sgd) K L Beddoe
  Senior Member

Decision No: 150/2001
CATCHWORDS
JURISDICTION:  Freedom of Information – whether deemed refusal of request for internal review – no valid request for internal review. 

Freedom of Information Act (1982) s 54 (1), 55(3)

REASONS FOR DECISION

28 February 2001              Mr K L Beddoe (Senior Member)

1. The applicant seeks review of a deemed refusal by the respondent said to be within the terms of section 55(3) of the Freedom of Information Act (1982) ("The Act").  The application for review was lodged in the Tribunal on 2 October 2000.  In a directions hearing held on 24 October 2000 the Tribunal directed that the parties make written submissions as to whether the Tribunal has jurisdiction under the Act.

2. The circumstances of the application for review may be summarised as follows.  On 15 May 2000 and 17 May 2000 the Family Court (Bell J) delivered judgments in Fitzgerald v Sheehy and others.  The applicant, who was a party to the Family Court proceedings requested from the Family Court a copy of transcripts of his Honour's ex tempore reasons for judgment.  That request is dated 23 June 2000.  That request did not purport to be a request under the Act.

3. The applicant was apparently supplied with transcripts of his Honours reasons for judgment on each occasion.  He does not accept that the transcripts are a true record of his Honour's reasons for judgment – hence the application under the Act.

4. A Deputy Registry Manager in the Family Court refused the application, it seems made under section 48 of the Act.  That section provides for amendment or annotation of personal records held by an agency.  A copy of the application is before the Tribunal and is dated 11 July 2000.  Without going into the particulars it is clear that the applicant was seeking to have the transcripts amended or annotated and I so find.

5. By letter dated 14 August 2000 the applicant sought review of the Deputy Registry Manager's decision and on 2 October 2000, applied for review in this Tribunal on the basis that there was a deemed refusal of the application for internal review.
   The Applicant's Submissions

6. The applicant submits that there must be a reviewable decision and relies on the decision of the Deputy Registry Manager.  He contends that the transcripts supplied are not the reasons for judgment of Bell J and seeks to draw a distinction between the transcripts and reasons for judgment.  On this basis he says the transcripts are administrative documents of the Family Court.  The distinction, according to the applicant is founded on the fact that the subject transcripts have not been certified by his Honour's associate as a true copy of the reasons for judgment.

7. However, the applicant goes beyond that distinction and claims that the transcripts are a fraud.  I understand the applicant to be asserting that the transcripts are not a true record of the reasons for judgment of the Court and are therefore to be characterised as documents that are documents relating to matters of an administrative nature (s 5 of the Act).
   The Respondent's Submissions

8. The respondent subsequently lodged written submissions objecting to the Tribunal's jurisdiction on the basis that there was not a deemed refusal of the application for internal review.  The respondent says that the applicant applied for internal review on 14 August 2000 but did not pay the required fee and relies on paragraph 15(2)(e) of the Act.  If the application is an application for internal review then section 54 is the provision that may require payment of a fee on internal review.

9. In any event the respondent has since waived the fee.  However nothing happened until 6 October 2000 ie after lodgment of the application for review in this Tribunal.  The Court submits that until the fee was waived on 23 October 2000 there was not a valid application for internal review and therefore no deemed refusal and no jurisdiction in this Tribunal.  The Court has not made a decision on the internal review on the basis that it is waiting to see if this Tribunal has jurisdiction in the matter.

10. The Court makes no submission in relation to section 5 of the Act, a matter which will presumably be dealt with when the internal review is undertaken.
    Consideration

11. Regulation 5 of the Freedom of Information (Fees and Charges) Regulations requires payment of a fee for an application for internal review under section 54 of the Act.  Section 54 (1) provides that a request for internal review, in the circumstances of this case, may be made in writing accompanied by any application fee.

12. In this case the application for internal review was not accompanied by the prescribed fee.  Nor did it include an application for remission of the fee in accordance with section 30A of the Act.

13. On this basis I am satisfied that there was not a deemed refusal within the terms of section 55(3) of the Act. This is because the request for internal review was not a valid application until the respondent waived the fee on a date after the date on which the application for review was lodged in this Tribunal.

14. For the above reasons I am satisfied that the Tribunal does not have jurisdiction in this matter because there was no relevant reviewable decision.  Whether there is now a deemed refusal is a matter I need not decide.  The application for review will be removed from the list of matters awaiting hearing.

15. Whether section 5 of the Act operates to put the documents in question outside the operation of the Act has not been decided but may need to be decided in the future.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed:         .....................................................................................
  Associate

Date of Decision  28 February 2001
Applicant  Written submission
Respondent  Written submission