Hamden v Campbell (No 2)

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FEDERAL COURT OF AUSTRALIA

Hamden v Campbell (No 2) [2012] FCA 460

Citation: Hamden v Campbell (No 2) [2012] FCA 460
Parties: DAVID KEVIN HAMDEN v KATHRYN CAMPBELL, SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES
File number: SAD 255 of 2011
Judge: LANDER J
Date of judgment: 7 May 2012
Catchwords: ADMINISTRATIVE LAW – mandamus – applicant sought document – Administrative Appeals Tribunal ordered agency to take all reasonable steps to find document – agency said it had taken all reasonable steps – agency said document no longer existed – whether all reasonable steps taken to find document – whether Court needs to be satisfied that all reasonable steps have been taken
Legislation:

Archives Act 1983 (Cth), s 24(1)
Constitution, s 75(v)
Federal Court Rules 2011, r 20.21
Freedom of Information Act 1982 (Cth), s 11, s 11(1), s 24A, s 24A(1), s 55

Judiciary Act 1903 (Cth), s 39B

Cases cited:

Chu v Telstra Corporation Ltd (2005) 147 FCR 505 cited

The King v The War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 cited

Date of hearing: 26 March 2012
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 40
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr P d’Assumpcao
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 255 of 2011
BETWEEN:

DAVID KEVIN HAMDEN
Applicant
AND:

KATHRYN CAMPBELL, SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES
Respondent

JUDGE:

LANDER J

DATE OF ORDER:

7 MAY 2012

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 255 of 2011
BETWEEN:

DAVID KEVIN HAMDEN
Applicant
AND:

KATHRYN CAMPBELL, SECRETARY OF THE DEPARTMENT OF HUMAN SERVICES
Respondent

JUDGE:

LANDER J

DATE:

7 MAY 2012

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

  1. The applicant issued this proceeding seeking the issue of a constitutional writ of mandamus compelling the respondent to comply with a decision of the Administrative Appeals Tribunal (AAT) made on 25 August 2011.

  2. For the reasons that follow the application must be dismissed.

    Facts

  3. The applicant was formerly employed by Centrelink.  He was dismissed from his employment.  He brought a claim under the Disability Discrimination Act 1992 (Cth) in the Federal Magistrates Court against Centrelink and two of its employees alleging disability discrimination. The application was dismissed: Hamden v Commonwealth of Australia (Centrelink) [2010] FMCA 36. The applicant appealed to this Court but the appeal was dismissed: Hamden v Commonwealth of Australia [2010] FCA 924. During the hearing of the appeal evidence was adduced of an email sent by Bronwyn Szabados, the applicant’s Team Leader at Centrelink, to Stephen Marsh, a Manager at Centrelink, in which Ms Szabados wrote, “plse [sic] ignore previous attachment sent to you…

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Details
Case
[2012] FCA 460
Decision Date

CaseChat Overview and Summary

In the matter of Hamden v Campbell, the applicant sought an order of mandamus to compel the respondent to produce a document that the applicant believed was held by the respondent. The application was dismissed by the Federal Court. The applicant, formerly employed by Centrelink, had previously brought a claim for disability discrimination, which was dismissed by the Federal Magistrates Court and subsequently on appeal to the Federal Court. During the appeal, evidence was presented of an email sent by the applicant's former team leader, which referred to an attachment that superseded a previous attachment. The applicant sought the previous attachment, but the Court declined to allow him to pursue Centrelink for the attachment.

The applicant subsequently made a request under the Freedom of Information Act for documents related to the email in question. Centrelink conducted a search but could not locate the documents, advising the applicant that the relevant emails were no longer available as they were older than six weeks. The applicant appealed to the Administrative Appeals Tribunal, which found that Centrelink had taken all reasonable steps to locate the emails, but the Tribunal directed Centrelink to determine whether the superseded attachment could be found. Centrelink subsequently located a final version of the document but confirmed that the original superseded document no longer existed.

The Court considered whether Centrelink had taken all reasonable steps to find the document, as required by section 24A of the Freedom of Information Act. The Court found that Centrelink had taken all reasonable steps to locate the document, and the document no longer existed. The Court also considered whether the Court needed to be satisfied that all reasonable steps had been taken to find the document. The Court held that the respondent had satisfied its obligations under section 24A of the Freedom of Information Act.

The Court dismissed the application and ordered the applicant to pay the respondent's costs of the application. The Court found that the applicant had not established that the disk, which he believed the document should have been stored on, either existed or was in Centrelink's or the respondent's control.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow the application must be dismissed.Facts The applicant was formerly employed by Centrelink. He was dismissed from his employment. He brought a claim under the Disability Discrimination Act 1992 (Cth) in the Federal Magistrates Court against Centrelink and two of its employees alleging disability discrimination. The application was dismissed: Hamden v Commonwealth of Australia (Centrelink) [2010] FMCA 36. The applicant appealed to this Court but the appeal was dismissed: Hamden v Commonwealth of Australia [2010] FCA 924. During the hearing of the appeal evidence was adduced of an email sent by Bronwyn Szabados, the applicant’s Team Leader at Centrelink, to Stephen Marsh, a Manager at Centrelink, in which Ms Szabados wrote, “plse [sic] ignore previous attachment sent to you earlier today – this attachment supersedes.” The applicant was aware of the email which referred to the previous attachment because concurrently with the proceedings in the Federal Magistrates Court he had brought proceedings in the AAT seeking compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The applicant filed a notice to produce in the appeal proceedings seeking the previous attachment referred to in Ms Szabados’ email. However, for the reasons given in the judgment on the appeal, I refused to allow the applicant to pursue the respondent for the attachment: Hamden v Commonwealth of Australia. On 10 September 2010, after I had delivered judgment on the appeal, the applicant requested access to documents within Centrelink pursuant to s 11 of the Freedom of Information Act 1982 (Cth) (FOI Act). The application sought:All emails sent by Bronwyn Szabados to Stephen Marsh for the period 3 May 2007 to 11 May 2007 inclusive, including “plse ignore previous attachment sent to you earlier today – this attachment supersedes,” refer attached copy of email.All emails sent by Stephen Marsh to Bronwyn Szabados for the period 3 May 2007 to 11 May 2007 inclusive.Evidence via affidavit lodged with the Federal Court in May 2010 indicates that these emails are available, refer attached copies. The right to obtain a document under the FOI Act is contained in s 11(1) of the FOI Act, which provides:11 Right of Access(1)Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:(a)a document of an agency, other than an exempt document; or(b)an official document of a Minister, other than an exempt document. It was not contended by the respondent that the document which was sought was an exempt document. Ms Scanlon, who was an Authorised Freedom of Information Officer within Centrelink, conducted a search for the relevant document and advised the applicant on 17 December 2010:ŸYou have requested access to a copy of emails sent between Stephen Marsh and Bronwyn Szabados using Centrelink’s email system during the period 3 May 2007 to 11 May 2007;ŸThe emails which you describe would have been sent internally i.e. Centrelink staff member to Centrelink staff member;ŸThe Centrelink Lotus Notes email is backed up daily and emails held on each staff member’s ‘inbox’ is [sic] stored centrally for 6 weeks;ŸMail on each individual staff member’s email is purged from the individual’s mailbox after 45 days;ŸThe maximum ‘age’ of Centrelink internal email which is stored is 6 weeks;ŸThe email records to which you seek access are in excess of 6 weeks old;ŸNo back-up tapes of email over 6 weeks old are held by Centrelink;ŸI have confirmed that there are no emails such as those you describe stored on any Centrelink electronic medium.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Senior Member Dunne noted in his reasons for decision published on 25 August 2011 that the document which had accompanied the email to which the applicant sought access was a Word document. He concluded:25. I am satisfied that all reasonable steps have been taken to find the “original” emails sent between Ms Szabados and Mr Marsh in the period 3 May 2007 to 11 May 2007 that were stored/held on Centrelink’s Lotus Notes electronic mail system (email). As was said by Mr Hill in his evidence (which I have no reason to doubt), the longest period an internal email can exist is 87 days – 45 days in an inbox and a further 6 weeks on the backup server. I am satisfied that the “original” emails Mr Hamden is seeking no longer exist.26. In relation to the Word document, which is the “superseded” attachment referred to by Mr Hamden in his Freedom of Information application (Exhibit R1, T32), it would appear that no (or no reasonable) steps have been taken to locate the attachment. It may be that it cannot be found or, like the original email to which it was attached, it no longer exists. Nevertheless, I find that, in order to satisfy s 24A(a) of the Act, it is appropriate that Centrelink take steps to determine whether a Word document that was the “superseded” attachment can be found or whether, like the email to which it was attached, it has been purged from the user’s inbox and the backup server and no longer exists.DECISION27. The Tribunal varies the decision under review to the extent indicated in paragraph 26 of these reasons. On 23 September 2011 Ms Scanlon wrote to the applicant referring to [26] of Senior Member Dunne’s decision and said:In conducting a search for the word document referred to in the AAT decision, I contacted the author who was able to provide me with the final version of the document as this was still in existence electronically on the computer system separately from the email to which it had been attached before being sent (the second email).The author advised that the original (“superseded”) document which was attached to the initial email (the first email) had been amended before it was attached to the second email in its final version, and that this final version of the document was the only version still in existence on the computer system because the original (“superseded”) document had been overwritten and converted into the final version of the document. In other words, the original (“superseded”) version of document ceased to exist once the amendments were made.Further, as the first email no longer exists, the original (“superseded”) document which was attached to the first email also no longer exists.In [sic] On 5 August 2011, in response to a subsequent FOI request, I provided you with access to the final version of the document which was the attachment to an email sent by Bronwyn Szabados to Stephen Marsh (i.e. the second email). On 26 September 2011 Mr Camilos, the Principal Legal Services Officer at Centrelink, wrote to the applicant confirming that the respondent had taken all reasonable steps to find the attachment.

Ratio Decidendi

Legal Principle Established

On 2 February 2012 Ms Scanlon wrote yet again to the applicant in the following terms:I refer to the decision of the AAT in respect of your appeal regarding the FOI decision of 17 December 2010, as well as to my letters of 23 September 2011 and 24 October 2011.As I previously stated in my earlier letters, I have conducted all reasonable searches for the original (“superseded”) version of the document in question and I can confirm that the digital record of the document (i.e. the electronic form of the document) has ceased to exist on the Centrelink computer system, including the backup server. In conducting these searches, I have obtained assistance as required from relevant Centrelink staff with specialist knowledge of the Centrelink computer system.I have also confirmed that the “superseded” version of the document in question was not saved, copied or otherwise placed onto any other electronic media separate from or outside of the Centrelink computer system. In other words, the document in question was not saved, copied or otherwise placed onto any floppy disk, magnetic tape, CD-ROM, DVD, USB memory stick or any other form of electronic media.I can also confirm, as I have previously indicated, that the original (“superseded”) version of the document in question was not printed or otherwise produced in hard copy form and so it also does not exist in that form.Consideration of Application The respondent has frequently and consistently advised the applicant that the respondent has complied with its obligations in response to Senior Member Dunne’s decision. It has repeatedly advised the applicant that it has made all reasonable searches for the document in question. The respondent’s repeated reference to reasonable searches or reasonable steps to find the document reflects the provisions of s 24A of the FOI Act. Section 24A provides:24ARequests may be refused if documents cannot be found, do not exist or have not been receivedDocument lost or non-existent(1)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.Document not received as required by contract(2) An agency may refuse a request for access to a document if:(a)in order to comply with section 6C, the agency has taken contractual measures to ensure that it receives the document; and(b)the agency has not received the document; and(c)the agency has taken all reasonable steps to receive the document in accordance with those contractual measures. Section 24A has the effect that an agency may refuse a request under the FOI Act if all reasonable steps have been taken to find the document and the agency is satisfied that the document does not exist. During the course of this proceeding the applicant has issued subpoenas in an endeavour to compel officers of Centrelink to bring the document which he seeks into Court. He also sought particular discovery pursuant to r 20.21 of the Federal Court Rules 2011. On that application he claimed, as he had before the AAT, that the document must be kept under the Archives Act, and that therefore the document existed. I held on that application that the applicant had not established that the disk, which he said the document should have been stored on, either existed or was in Centrelink’s or the respondent’s control: Hamden v Campbell (2012) 125 ALD 86; [2012] FCA 65.