Garland v Secretary Department of Social Security

[1999] FCA 232

FEDERAL COURT OF AUSTRALIA

Garland v Secretary Department of Social Security [1999] FCA 232

PRACTICE AND PROCEDURE - application for summary dismissal of appeal from Administrative Appeals Tribunal as not raising any question of law or any reasonable cause of action - whether any real justiciable question to be argued or determined.

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 cited
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 referred to
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to

G GARLAND v SECRETARY DEPARTMENT OF SOCIAL SECURITY

QG158 OF 1998

COOPER J
BRISBANE
22 MARCH 1999

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG158 OF 1998

BETWEEN:	G GARLAND Applicant
AND:	SECRETARY DEPARTMENT OF SOCIAL SECURITY Respondent
JUDGE:	COOPER J
DATE OF ORDER:	22 MARCH 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application of the applicant, filed 26 November 1998 and amended by leave on 5 February 1999, be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the application, including the costs of the notice of motion, to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG158 OF 1998

BETWEEN:	G GARLAND Applicant
AND:	SECRETARY DEPARTMENT OF SOCIAL SECURITY Respondent

JUDGE:	COOPER J
DATE:	22 MARCH 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant, on 26 November 1998, filed an appeal from a decision of the Administrative Appeals Tribunal affirming a decision, made pursuant to s 24A of the Freedom of Information Act 1982 (Cth) (“the Act”), to refuse access to a document. The application stated that the following questions of law were raised on the appeal :-

   “(a)The person who made the decision was required by law to reach that decision only if a particular matter was established, & there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established.

   (b)The person who made the decision based the decision on the existence of a particular fact, and that that did not exist.

   (c)The person took an irrelevant consideration in account & failed to take a relevant consideration into account.”

2. The applicant sought the following orders :-

   “(a)Have the AAT Decision over-turned and

   (b)That the Respondent give the Applicant the exact two (2) items which the Applicant tabled on 02/5/97.”

3. The grounds relied upon were :-

   “(a)The applicant received said items from the Respondent & for those specific grounds said items became the property of the Applicant.

   (b)On the grounds that the bad blood created from the instigation of & then not owning up to the existence of said items has made dealings with the Respondent impossible.”

4. On 27 January 1999 the respondent filed a notice of motion seeking that the notice of appeal be dismissed as not raising any question of law nor disclosing any reasonable cause of action.

5. On the hearing of the notice of motion the applicant sought leave to amend her application by deleting the existing paragraphs 2, 3 and 4 and inserting in lieu thereof the following :-

   “Orders Sought

   1.        That the decision of the Tribunal (the T) be set aside.

   2.        That the case be remitted to the T to be heard and decided again and determined in accordance with law and these reasons, either with or without the hearing of further evidence.

   3.        That the T furnish to the A, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence and other material and those reasons.

   4.        That the Court make an order for the discovery of documents and require the giving of evidence and the production of documents to the court.

   Grounds of Appeal

   1.        That the decision of the T and the reasons of the T for making the said decision were contrary to and wrong in law.

   2.        There was no balancing exercise carried out by the T - this being essential in any discretionary exercise.

   3.        First it is necessary to consider what decision was being reviewed.  It should be accepted that the decision under review was that set out in the documents lodged pursuant to that sect ie s37 of the AAT Act 1975 and 24A of FI Act 1982.  That procedural fairness was not applied.

   4.        The T failed to consider the significance of the inconsistencies.

   5.        The T failed to take any factor favourable to the A into account.

   6.        It would be wrong, and an error of law, to presuppose some standard chain of events.

   7.        The T failed to have regard to and explain material before it which, in law, it could not ignore.

   8.        The T erred in concluding that there was no evidence before it that a letter with the name Terry Walker on it did exist.

   9.        In its SOR the T listed the R as being the Secretary, Dept of Family & Community Services and Point 20 to please be explained.

   10.      That the manner in which a case was conducted before the AAT may be a real factor in the exercise of this Courts discretion to set aside the AAT decision.

   Questions of Law

   1.        The Tribunal (the T) made the decision, which the Applicant seeks review/appeal of, because it was required by law to reach that decision.  The T reached that decision only because a particular matter was established ie that the senior social worker did so write a letter, and did necessarily prepare an envelope, for posting to the A.  These are fact and as such he was entitled to take notice of them.  From the material tendered he could not be reasonable satisfied that the matter of another letter had been established.  To further cloud the finding that he be reasonably satisfied there is the matter of the name which the A claims was on the letter.  That name does not in fact have a ready owner.  There being no evidence of any such person is a fact which the T was entitled to take notice of.

   2.        The T based the decision on the existence of a particular fact, and that fact did not exist.  That particular fact being that Mr Boyle posted/mailed the letter.  That fact did not exist.  Mr Boyle is unable to recall if he signed the letter which he authored.  On evidence Mr Boyle’s ‘aim in drafting the letter as I did was to make MY CONTACT as non-threatening as possible’.  Mr Boyle’s role amounted to and was nothing more than unwitting collusion.

   3.        The T took an irrelevant consideration into account, that being that Terry Boyle held the designated position of senior social worker and that he authored a letter to the A.  The T ignored an important relevant consideration ie the Applicants evidence and this clearly amounts to an error of law.  Other relevant considerations which the T failed to take into account include parts of the statements of Mr Fagg and Mr Boyle.  In his statement Mr Fagg says the A has never given him a letter ‘authored’ by a Terry Walker and that after the interview he gave the letter to Mr Boyle.  Mr Boyle, when giving evidence, said he was not there on Fri 02 May ’97.  That the T failed to take relevant consideration into account with respect that the first 3 lines, 2^nd page of Mr Boyle’s statement and Mr Fagg’s statement are contradictory.  Relevant also is the last sentence in paragraph 3 of page 2 of Reasons for Decision where it says ‘refusing access to THAT document’ and its also relevant that the T is satisfied that MR Fagg would not have accepted the letter unless he recognised it as being a letter that may have emanated from that office.  Another relevant consideration which the T failed to take into account was that Mr Boyle made notes on Wed 07 May ’97.  Lastly there is the matter of Mr Boyle saying ‘K L Hogan has read to me a document which she has informed me is the typed PART of what appears at T18 folio 38 of the T Documents’.  Because the R between approx May ’97 - July ’97 did not meet any of the requests made by the A the T may take the view that where material or information centrally relevant to the decision is fairly readily available or relatively easily obtainable, failure to make an attempted to take reasonable steps to obtain that information renders the decision open to the charge that it is not the correct and preferable decision in the circumstances.”

6. Notwithstanding the amendments the respondent maintained its application for summary dismissal.

7. The proceedings in this Court and below concerned a factual issue of whether or not there exists, or ever did exist, a letter signed “Terry Walker” which the applicant asserts she received in the post and which she handed to Mr Brendon Fagg of the Department of Social Security Regional Office at Toowong on 2 May 1997.  There is in existence a letter dated 1 May 1997 from Mr Terry Boyle to the applicant which, on the evidence before the AAT, was posted to her on 1 May 1997.  The applicant says that this is not the letter she received and returned to Mr Fagg.

8. There was evidence before the AAT from Mr Fagg that there was no person employed at the Toowong Regional Office named “Terry Walker” and that the letter handed to him by the applicant was the letter signed by Mr Boyle.  Mr Boyle, who is blind, gave evidence of causing a letter to the applicant to be prepared using a voice synthesiser computer software package.  His belief is that the envelope in which the letter was to be sent was prepared by another member of the staff and that the letter was posted in the ordinary way.  There was evidence from the applicant that the letter she received, save for the name of the author, was in similar terms, although with some important variations, and similar form to the letter before the Tribunal which was the letter authored by Mr Boyle.  The similarities were important because Mr Boyle had prepared his letter on plain paper and sent it in an envelope without departmental markings.  It was also written in a particular style which he hoped would be non-threatening to the applicant, having regard to previous dealings with the Department and her views in respect of some departmental officers.

9. There was also evidence before the AAT of searches being made by Mr Fagg and others for the letter, or a copy of the letter, the applicant contends she received from “Terry Walker” and which she contends she returned to Mr Fagg.  Those searches have revealed no such letter.  There was also evidence that no person named “Terry Walker” had ever worked at the Toowong Regional Office of the Department or elsewhere in Queensland.

10. The AAT accepted the evidence of Mr Boyle and Mr Fagg.  To the extent that the applicant gave contrary evidence, the AAT rejected that evidence.  The AAT found that the letter received by the applicant and returned to Mr Fagg was the letter authored by Mr Boyle and that that is the letter on file which the applicant has had access to in response to her Freedom of Information request.

11. The AAT also found that no document signed by a “Terry Walker” exists and in consequence that the Department was entitled, pursuant to s 24A(b)(ii) of the Act, to refuse the request for access to a document described by the applicant as a document authored by and signed by a “Terry Walker”.

12. There was ample evidence before the AAT to enable it to make the findings of fact which it did.  Upon close analysis, the gravamen of the appellant’s complaint is that the AAT did not accept her evidence.

13. Having found, as a fact, that no letter to the applicant authored and signed by a “Terry Walker” exists, no question of discretion to make an order in favour of the applicant granting access to that document arises and the only proper course was to affirm the decision made under s 24A of the Act.

14. The proceedings raise no questions of law for consideration on this appeal.  The issues which the applicant wishes to ventilate are the facts and the inferences to be drawn from those facts in order to undermine the ultimate factual findings made by the AAT.  The position of the applicant, I am satisfied, cannot be improved by amendment.  Accordingly, the case is one which ought to be summarily dismissed because there is no real justiciable question to be argued or determined:  Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

15. The respondent has succeeded in its application.  There is no reason advanced why the ordinary order as to costs should not be made with costs following the event.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             22 March 1999

Applicant in person:	G Garland
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 February 1999
Date of Judgment:	22 March 1999