Kelly v Secretary, Department of Treasury and Finance

[2002] HCATrans 534

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M7 of 2002

JOHN EDWARD KELLY

Applicant

and

THE SECRETARY, DEPARTMENT OF TREASURY AND FINANCE

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 10.41 AM

Copyright in the High Court of Australia

MR J.E. MIDDLETON, QC:   If the Court pleases, I appear with my learned friends, MR D.M.B. DERHAM, QC, and, MR P.J. BOOTH, for the applicant.  (instructed by Middletons)

MR J.B.R. BEACH, QC:   If the Court pleases, I appear for the respondent with MR M.K. MOSHINSKY.  (instructed by Freehills)

GLEESON CJ:   Yes, Mr Middleton.

MR MIDDLETON:   If the Court pleases, this matter raises a question of construction of the Freedom of Information Act. In our submission, what the Court of Appeal effective did in its decision was to add a new ground of refusal for access to documents adding a ground which they did not articulate and in fact could not articulate. They did that by interpreting section 25A of the Freedom of Information Act in a way which was not permissible on its ordinary reading nor, we say, permissible as a matter of normal statutory construction.

The starting point we say, your Honours, which we say with the greatest respect to the Court of Appeal, they did not take is to look at the objects of the Freedom of Information Act as a whole.  So, one does not start with 25A but when one looks at the objects of the Freedom of Information Ac, section 3 and section 16, one sees that the object of the Act is to extend as far as possible the right of the community to access to information and, secondly, the legislature enjoins everybody when interpreting the Act to interpret it with that policy in mind.  Now, what the applicant did in this case was, as he was entitled, to make a number of requests and that entitlement is given ‑ ‑ ‑

McHUGH J:   The number being 321.

MR MIDDLETON:   321.  It is a number which should not beguile the court.  We say it did, the Court of Appeal, because when one sees by way of analysis of an overview document which was before the court and is before this Court the way in which the requests were made was dealing with specific documents and dealing by topic – by that I mean reference to memoranda or letters or briefing papers and they are all split into different categories and one sees that ‑ ‑ ‑

GLEESON CJ:   Why was not there just one request covering all these matters?

MR MIDDLETON: One request covering all the matters would have not facilitated the obtaining of documents because of the operation possibly of section 25A.

GLEESON CJ:   So, they were split into a number of documents to avoid the operation of section 25A?

MR MIDDLETON:   No, your Honour, it is not the avoid the operation.  It is firstly to fulfil the requirement that one has a request.  So, under section 17 one is entitled to make as many requests as one likes.  You can make a request for one document or 100 documents.  It was done so that if a facilitation of, of let us say, one request was made for one document or a series of documents, the Department has the ability to respond to that particular request and that is the end of that one.

It certainly could not rely upon 25A to say, if the construction we contend for is correct, and the construction accepted by the Tribunal below is correct, that you can look at the other requests, or any one of them, to say it is too voluminous for the purposes of section 25A.

GLEESON CJ:   But these requests were not split into 84 requests for the purpose of assisting the Department, were they?

MR MIDDLETON:   No, your Honour.  No, it is not said that ‑ ‑ ‑

GLEESON CJ:   What was the purpose for which they were split into 84 ‑ ‑ ‑

MR MIDDLETON:   The number of – perhaps to go back in history, your Honour.  Firstly, there were five departments, so you have to have separate requests, on any view, to five different departments.

GLEESON CJ:   You had to have five?

MR MIDDLETON:   You had to have five.

GLEESON CJ:   Yes.

MR MIDDLETON:   The Court of Appeal does not seem to grapple with that at all, your Honour, because they group all of them together, because after the five requests were made they were transferred to one department.  Now, the other reason to do the requests is so that you can have an answer in relation to any particular request without the Department having to consider, in relation to other documents, whether or not it is a hard job to go and find them, locate them or not.  Now, to that extent, there is, by the applicant making the application so that 25A will not operate, but it is ‑ ‑ ‑

GLEESON CJ:   Do you have an Interpretation Act in Victoria that says the singular includes the plural?

MR MIDDLETON:   Yes, your Honour, we do, and that was argued before the Court of Appeal but effectively abandoned by Mr Nettle, as he then way, because as was mentioned in the Court of Appeal’s judgment and by Justice Callaway in argument, that really does not get over the problem because you can have the plural include the singular single plural but you still then just have requests that can be made by a number of them but it does not get over the problem which is the problem at the heart of this case, your Honour, how do you group?  Do you group 321?  Do you group 100?  By what criteria does the Department group 321 requests?  Let us say there were five requests.

GLEESON CJ:   But leaving aside that question which we can come back to, is there any problem in reading the word “request” in the plural in section 25A and saying:

The agency . . . dealing with a request may refuse to grant access to documents in accordance with the request –

because, et cetera?

MR MIDDLETON:   No, there is not, your Honour.  Can I take your Honour to page 43 of the application book where that issue is dealt with, and we say correctly, by the Court of Appeal.  Line 40:

Although Mr Nettle did not formally abandon those arguments, he accepted the observation of Callaway, JA made during the hearing before us that, even if one were to read “request” as “requests”, this would nevertheless leave unclear which of them could be grouped for the purposes of determining whether s 25A(1) applied – is it only those that were filed on the same date and/or those that related to the same category of material and/or by the same parties, and so on? In other words, merely construing “request” as including “requests” does not answer the question whether the agency can group requests for the purposes of s 25A(1).

And, we say exactly so, with the greatest respect.  If the legislation – and 25A says nothing about this – does not enable the responsible authority to group we say the court in this case has inserted a further ground for refusing access and has done so by a side wind by saying that, “I give a discretion, now, a discretion to the responsible authority to group” and a court does not give any indication as to how that discretion is to be exercised but there is no discretion to be found in the Act at all and the Act is to be read as “assisting access to information” not hindering it.  Wright’s Case which came to this High Court under the Freedom of Information Act said that very thing, “any interpretation of the Act is to be given with the object of assisting access.”

When you look at 25A itself, which the Court went to immediately, one sees in subsection (6) the very notion of assistance even in that context because subsection (6) says you must not “refuse to grant” a document under section 25A unless you give the applicant an opportunity to consult and you give the applicant information to make the request in a proper form.

GLEESON CJ:   Mr Middleton, am I right in thinking that these applications were made as a kind of substitute for discovery in relation to pending litigation?

MR MIDDLETON:   Your Honour would be right in thinking that the catalyst for these requests was because of a discovery order made in the Federal Court.

GLEESON CJ:   What I was interested in knowing is what is the current state of that pending litigation?

MR MIDDLETON:   The pending litigation was transferred from the Federal Court to the State Supreme Court and the litigation is litigation between the respondent to an action by plaintiffs and the respondent brought a cross‑claim against the State.  That cross‑claim has been held in abeyance until the hearing of the first trial in relation to the plaintiff and the defendants.  That first trial has been completed and we are waiting on a judgment in relation to some questions of law and fact by his Honour Justice Gillard.

But, your Honour, can I say this with the greatest respect, that issue of the litigation is an irrelevancy because one thing that is clear in this litigation, the motive, aims or intention of the applicant are irrelevant and, in fact, 25A itself says that it is an irrelevancy.  In subsection (4), the:

Minister must not have regard to –

(a) any reasons that the person who requests access gives for requesting access; or

(b) the agency’s or Minister’s belief as to what are his or her reasons for requesting access.

So, intention is irrelevant and these requests can be made whether there is any litigation or not.  In fact, in the Federal Court an application was made to enjoin Mr Kelly, the applicant, from continuing with his request on the basis that it was an abuse of process of the Federal Court and Justice Merkel refused that application.  So, they are separate matters as to the interference or whatever with that court and the question of a right to access.

The starting point, in our respectful submission, when one comes to section 17(2), is simply that everybody has a right to access to information.  That is what section 17(1) says:

A person who wishes to obtain access –

must ‑

make a request in writing . . . as the case requires for access to the document.

That is the starting point and that is what has happened.  Each request has been made.  There is a fee paid for each request and each request could be facilitated in a particular way.

GLEESON CJ:   What finding was made about the evidence given by an official that it would take a Freedom of Information Officer 14 years to review all these files?

MR MIDDLETON:   That evidence was not accepted.  What happened: evidence was given before the Tribunal and the Tribunal did not accept that that was an appropriate sampling process or appropriate evidence to be accepted and that was made clear at page 54 of the application book where Justice of Appeal Chernov states at paragraph 63:

It was open to the Tribunal not to accept the Department’s claim that in order to process the requests it would have to examine 2,600 files.  For one thing, the index shows that many of them were not relevant to the requests and, therefore, would not have to be examined.  Similarly, it was open to the Tribunal to conclude that –

and I will not read those particular matters but they were matters put before the Tribunal as to why the sampling process and the conclusions reached as to 14 years for one officer to process these documents should not be accepted.  So the Court should not be under the impression that even if grouped, this is a matter which you start with the premise that they are oppressive or unreasonably divert the resources of the State.

GLEESON CJ:   So was the ultimate effect of what the Court of Appeal decided to send the matter back to the Tribunal to have another look at it?

MR MIDDLETON:   Yes.  We were to be sent back to the officer – the Department - so they would then process it in accordance with the ruling of the Court of Appeal and whatever then decision would be made would go then eventually to the Tribunal, if there was any further evidence to be led.  It was still left open, in the way in which the Court of Appeal determined it, that evidence would be put before the Tribunal in addition to the evidence that was already there before to show the grouping would be – I use the word “oppressive” as a shorthand phrase for saying unreasonably diverting resources.

GLEESON CJ:   Then the aspect of the decision of the Court of Appeal that appears to the disadvantage of your client is that the Freedom of Information Officer, and, if necessary, the Tribunal, can deal with the matter by aggregating or grouping these requests.

MR MIDDLETON:   It was a point of law raised by the respondents to the Court of Appeal, because you can only appeal on a point of law to the Court of Appeal from the Tribunal and the point of law was the construction of 25A as to whether that permitted the grouping or aggregation of the 321 requests.  That was the point of construction.  That is the point we seek to agitate in this Court.

GLEESON CJ:   And the Court of Appeal held, “Yes, it does, but what is an appropriate grouping is a matter for the Tribunal to decide”.

MR MIDDLETON:   No.  They would say it is in the discretion of the Department, at first instance, your Honour.

GLEESON CJ:   Yes, and if there is a challenge ‑ ‑ ‑?

MR MIDDLETON:   Then, of course, if it goes on appeal the Tribunal would work out whether or not that is appropriate or not.

GLEESON CJ:   That is what I meant.

MR MIDDLETON: Yes, your Honour. That is the process which will take place, your Honour. But, the Act, after giving the right to access to documents, circumscribes exempt documents and the law – the cases have said one should read those with some care in having regard to the overall impact of the Act allowing for access. Section 25A is not an exemption provision, it is an empowering provision for the Department to refuse access. The Department has to bring itself within that provision for that provision to operate and that is where we say the Court of Appeal in construing section 25A fell into error because it ‑ ‑ ‑

McHUGH J:   Why can you not interpret 25A on the “last straw” theory?  That is to say, you may have to accept your request and say in relation to the first five or six requests that you make but when the Minister or the Department comes to document 7, it says, “Having regard to the work we have to do in relation to documents 1 to 6, this would unreasonably divert the resources of the agency from those operations of examining 1 to 6 and therefore we refuse 7, 8” et cetera, et cetera?

MR MIDDLETON:   Your Honour, the Act does not say you can do that.

McHUGH J:   Why does it not?  When it says that it is an answer that it would substantially and unreasonably divert the resources of the agency from its other operations, that must require or empower the Department to examine all its other requests.

MR MIDDLETON:   Well, your Honour, that would then allow the Government to say, “We were going to allocate $1,000 to the Freedom of Information requests for this year and if the fifth one comes in, sorry, that is over our budget, we are not going to do it”.  You see, you could have 100 different people making requests and your Honour’s approach would apply to those requests, even though they are completely unrelated because if you read it that way they would say, “Well, the sixth request has come in from the sixth person.  We have not the resources, having regard to – we have only one Freedom of Information Officer”.

McHUGH J:   That may be the case.  The Act seems to operate on the hypothesis that they have finite resources.

MR MIDDLETON:   It does and if that was the case, your Honour, then all the Freedom of Information Acts around the country, and they are in the States and the Commonwealth, would be put at nought.

McHUGH J:   Yes, but you seek to rely on a literal interpretation.  I am suggesting there is another literal interpretation of the Act which is equally as persuasive.

MR MIDDLETON:   Your Honour, with the greatest of respect, I respond to your literal interpretation by saying it is an absurd result because I hope your Honour will not respond in the way in which I put the interpretation.  In our case we are not seeking to stand on literal interpretation.  There is a purposive approach to our approach to it as well because it facilitates the granting of access by our interpretation.  To give an example, it may be that within 100 documents one is seeking one can find over in a corner five of them – hand them over in five minutes.  But, if you aggregate them and the Department wants to rely upon 25A, you do not get those documents because the Department says, “All right, I can find those five but I am entitled to say that the request, in itself, is oppressive”.

McHUGH J:   There is much force in your argument that they have to consider each individual document but then it seems to me that the second limb enables or authorises the Department to consider the effect of processing this document on its other operations which must include all anterior requests.

MR MIDDLETON:   Your Honour, I do not think it was ever contended by ‑ ‑ ‑

McHUGH J:   I know it was not.

MR MIDDLETON:    ‑ ‑ ‑down below that one would be able to rely upon 25A in relation to requests by different people in relation to different topics because that is not the effect of 25A.  That has to be some work it is doing by talking about “the request” otherwise the whole Act becomes nought by government funding and that would not be the intention of Parliament, normally, to have an Act operate in that way.  So, you have to give it some meaning and “the request” is ‑ ‑ ‑

McHUGH J:   But does not your argument lead to the conclusion that the Department must be so funded that they can always deal with requests no matter how voluminous?

MR MIDDLETON:   Parliament has so enjoined.  It says that a request is made and within a certain period of time it must be responded to.  The Act of Parliament says that you must do so.  It does not say, “I have not enough money to deal with that request”.  It does not say that.  That is not a reason for not giving the request.

McHUGH J:   But it does say you can refuse on the ground of:

would substantially and unreasonably divert the resources of the agency ‑ ‑ ‑

MR MIDDLETON:   Yes, it does say that.  It has to be given some meaning in relation to the request and that is the issue.  That is the issue of construction.  It is apparent that at least two justices found difficulty with the point.  Justice Ormiston said, I think, it:

caused me great difficulty –

and so did Justice Callaway have “misgivings” about his agreeing.  It is an issue of some importance because if the Court of Appeal decision is allowed to stand then that is a mechanism which we say the government can use to refuse access to information by grouping.

McHUGH J:   What do you say about the Bennion principle of interpretation, that the court will infer an intention by Parliament that an:

evasion of an Act should not be countenanced where the method used is constant repetition of acts which taken singly are unexceptionable, but which considered together cumulatively effect an evasion ‑ ‑ ‑

MR MIDDLETON:   We say there is a very simple answer to that.  That passage of Bennion was under a heading called “evasion” of an Act, and, the earlier part of the book deals with, “Evasion”.  So, it is specifically dealing with where you have a specific or actual prohibition or enjoined by the Act which you do not adhere to.  That is to be distinguished from an Act whereby the statute does not cover and you are outside that Act.  That is our case.  We are not enjoined not to make those applications.  Under section 71 we are entitled to make 321 requests.

That is not in dispute. Section 25A does not act upon the applicant. Section 25A is an empowering provision for the agency. So, it is simply not an evasion, it is not an avoidance, it is simply a matter of working outside the Act as the Act, we say permits and encourages, if we are correct to say the starting point is to facilitate access to information. That is the answer to that. It was a matter which was not argued before the Tribunal. To the extent to which it mixes law and fact, that is a matter which cannot be raised. If the Court pleases.

GLEESON CJ:   Thank you, Mr Middleton.  Yes, Mr Beach.

MR BEACH:   Your Honour, in our submission, the Court of Appeal’s decision was plainly correct on two principal grounds, each of which, with respect, have not been properly addressed by the applicant. The first ground that the Court of Appeal decided the case on was to find as a matter of fact that, in substance, there was a single request. So, they looked at the 321 pieces of paper and concluded, particularly Justice Ormiston, that one could view as a matter of substance that there was in fact a single request and once you have reached that conclusion of course it then did not matter whether section 25A was consistent with the principle that the singular includes the plural, as referred to in the State Interpretation of Legislation Act.

So, the Court of Appeal’s essential foundation for its decision was to say on the facts as before the Tribunal and, obviously before it, there was in substance a “single request”.  That was said by Justice Ormiston at paragraph 8 at application book page 26.

McHUGH J:   If the fee is X, are you going to give them back 320X?

MR BEACH:   We will sympathetically consider an application for a refund, your Honour.

MR MIDDLETON:   I will make it ‑ ‑ ‑

MR BEACH:   I said we would consider the application.  I did not say what the result would be.  Paragraph 8 of Justice Ormiston at page 26, in the second line of paragraph 8, he says:

That conclusion, as a matter of practical application, points to the right of the appellant to group the present requests together as a single request.

And, indeed, the foundation for that statement is what is said by his Honour at the beginning of paragraph 3, page 23.  He said at line 30 on page 23 that:

all the requests as at the least related and directed to a single subject matter –

At line 36 on that page, he said:

the requests –

were all made by the:

one person –

the solicitor for the Esso entities.  He goes on to say towards the top of the next page that:

they were all made in the same period –

More relevantly, he concluded with reference to one particular example that many of the documents were cross‑referenced back to other documents, so that you could not take one of the 321 pieces of paper and consider it and process it in isolation because the very piece of paper itself referred back to earlier pieces of paper and the example which appears at line 10 on page 24 abundantly demonstrates the point. In relation to one particular request,  there was an exclusion of:

documents to which access was requested in request numbers DNRE 1‑30 –

So, on the facts, his Honour concluded, as we would say quite obviously, that one could, in substance – not form but in substance – treat all of these 321 pieces of paper as one request. Perhaps you might treat them as five requests because there were 54 documents given to each of four departments and 105 documents given to the fifth department, the Department of Treasury and Finance, but whether or not you consider them as one request, in substance, or five requests, the underlying foundation was that you could, in substance, aggregate the pieces of paper and quite consistently with the way the expression “request” is dealt with in section 25A to, in substance, conclude that that was in fact one request.

It is not a question for the exercise of discretion by the relevant agency as to the question of aggregation. This was an objective assessment on the facts that in the peculiar circumstances of this particular case there was a proper basis for a finding that in substance there was one request. No question of the exercise of discretion and how that discretion might be exercised by the Department to aggregate, but just that on the facts of this case that was the proper objective assessment, in substance, of what was going on and, therefore, that that constituted a request under section 25A.

Now, “request” is defined in section 3 of the legislation.  It is defined by reference to “a request in writing” made under section 17 of the Act.  So, the minimal requirement is that there be something in writing but the Act leaves it quite open as to what that particular piece of paper or writing is.  We say, on the facts of this case, it was quite appropriate to conclude that the “in writing” was in fact constituted by the 321 pieces of paper, particularly given that many of the pieces of paper cross‑referred back to other pieces of paper so you could not process one or consider one in isolation of the other.

Indeed, even if we are wrong on that point and the section 3 definition of “request” was not met by reference to section 17. the section 3 definition of “request” is stipulated to apply unless a contrary indication or intention is indicated and one might say that there could conceivably be a modified construction to “request” for the purposes of section 25A. We do not have to put our case as highly as that. We are prepared to say that “request” is as meant in section 17 and the only requirement there is “in writing” so it becomes a factual inquiry, not an exercise of discretion as to what those pieces of paper are.

We say that once you analyse the issue in that light all of my learned friend’s arguments fall away.  You do not need to consider niceties about the purpose or objective of the statute, you do not get into questions of the exercise of discretion, it is just simply a factual inquiry and we would say there is no reason to doubt what the Court of Appeal concluded on that point. 

Now, in relation to your Honour Justice McHugh’s statement about the “last straw” argument.  In fact, that argument was dealt with, albeit in a different way, by Justice Chernov, which brings me to the second aspect of our argument.  Assume for the moment that we have to consider each of the 321 pieces of paper as a separate request and we are not allowed to aggregate them and treat them in substance as one request.  What s425A stipulates is that the agency has to be:

satisfied that the work involved in processing the request . . . would substantially and unreasonably divert the resources –

Now, the expression “work involved in processing the request”, if you assume that each piece of paper is a separate request, we would say that the work involved in processing one piece of paper is inextricably bound up with the work involved in processing the other bits of paper for the very simple reason that - as I indicated from the earlier passages in Justice Ormiston’s judgment – each document is cross‑referred to each other document.  In large measure, there are some requests that are not so cross‑referenced but many of them are.

So, in considering processing one of the pieces of paper which cross‑references back to 30 other requests, we would say that inevitably in determining the work involved in processing that bit of paper you have to also look at the work involved in processing the other requests that that first bit of paper cross‑refers back to.  That point is made very clearly by Justice Chernov in a passage that appears at page 49 of the application book, paragraph 51.  He says:

I now turn to the second reason . . . Even if, on a proper construction of the provision, “request” is confined to a single request, some of the requests in terms exclude documents that are referred to in other requests.  Consequently, at least all those requests would have to be considered together to determine whether they are oppressive.

We have prepared a table of the requests that are cross‑referenced back to other requests and just to give your Honours an appreciation of the magnitude of that I will just hand to your Honours a summary of the requests.  The requests, all 321 of them, were given a wave, a tidal wave between 10 December 1999 and 24 December 1999.  The requests, 150 of those, were given on 10 December and then there was a second wave on 17 December and that second wave, all of those requests cross‑referred back to the earlier requests, so I am not making this point of cross‑referencing merely by reference to one of the requests but the vast majority of them have this cross‑referencing aspect attached to them.

We would say, either because of the cross‑referencing back ‑ assuming each bit of paper needs to be dealt with as a separate request ‑ you would need to consider the work involved in processing the other requests that the first piece of paper cross‑referred back to.  We would say if you also assume that all of the 321 requests related to a single subject matter, that in processing the requests you would be processing them as a group, so, necessarily, the work involved by the agency in processing one bit of paper would be part of the work involved in processing the group.  We would say, on any fair reading of the words “work involved in processing the request”, we would say it is quite open to the agency to so process them collectively as a group, particularly as Justice Ormiston found they were directed to a single subject matter.  So, we would say on either limb, the Court of Appeal’s decision is perfectly correct. 

Now, can I address two other aspects? Mr Middleton has referred to the object of the statute to provide a crutch for his argument that you cannot construe section 25A in the way the Court of Appeal has. It is all very well to refer to the section 5 object but, of course, the section 5 object must be read subject to the specific provision of section 25A, so section 5 is necessarily limited by section 25A. Indeed if one wanted to be perfectly correct about the precise object one should be looking at, we would say you would be looking at the amending Act, the 1993 State amending Act which included section 25A or the purpose or object of the specific provision in section 25A rather than reference to the section 5 object, generally.

One can understand how the section 5 object was used by the High Court in Wright’s Case because of the conflict between two statutory provisions, but in the present case there is no question of internal conflict in the statute. We would say on a proper construction of the words of section 25A they are perfectly consistent with the section 3 object, particularly as section 3(1)(b) referred to the object as:

creating a general right of access . . . limited only by exceptions and exemptions –

and we would say, classically, section 25A would have to be treated as an exception to access if not an exemption but we would say that the proper construction of section 25A that we advanced and the Court of Appeal found is perfectly consistent with the section 3 objects, if that is the defining principle to be considered in the present context.

Now, we do not agree with the exposition of the special leave questions in the applicant’s application.  There is reference there that this application involves the question as to the application of the principle of statutory construction in relation to evasion set out in Bennion.  We disagree that this present case necessary involves the application of that principle.  Justice Ormiston quite clearly was approaching the matter by using the purposive approach.

If one looks at where he starts and finishes, he makes the factual findings that there was but a single request.  He does, at paragraph 6 of application book 25, look at the extrinsic material.  At paragraph 6, application book 26, he looks at the legislative intent.  At paragraph 9, application book 27, he does refer to the “purposive” approach and says that a corollary of the purposive approach may be that you construe the provision against permitting an evasion of this type if the plain and ordinary meaning of the words would permit of that interpretation.

But, at the end of the day, at paragraph 11 of his reasons, he comes back to the proper question which appears at the top of page 30 that:

The exercise in all cases of statutory interpretation is to ask the question whether the particular transaction comes within the proper interpretation of the provision relied upon.

So, although there is some discussion of the principle relating to evasion from Bennion and Maxwell, at the end of the day his Honour returns to the central issue which is adopting a purposive approach of how is section 25A to be construed and how is it to be applied to the facts here if you look at what has in substance occurred rather than the form of what has occurred and he comes back full circle to the “one request” conclusion at paragraph 12, application book 30, line 39:

I have little doubt that his request should be viewed as a single request, or at least as five only separate requests –

My friend made reference to the fact that the court did not come to grips with the “one request” or “five requests” point.  The court did.  It said it was appropriate to aggregate but that would be a matter of fact and a matter for the Department to consider, so the matter has been remitted back to the agency to consider the question without the Court of Appeal forming a final view as to whether there should be one request or five requests.  It simply did not matter to reach a final position on that point.

So, we say the well‑recognised principles of statutory construction applied to a State Act is unremarkable in this judgment, it is clearly correct. This case, in any event, is not a suitable vehicle for dealing with the evasion

principle or the aggregation issue because on the facts given that some of the documents were cross‑referenced back to other documents, we would say that it would not be open to conclude that one could, without the cross‑referencing, nevertheless acquiesce of Mr Kelly’s segmentation of the 321 documents and for those reasons we say leave should be refused.

GLEESON CJ:   Yes, Mr Middleton.

MR MIDDLETON:   If your Honours please.  In our submission, it comes down to the construction of a statute which the court, for one reason or another, had to use a purposive approach by adding to or clarifying a particular provision.  Now, to do that it is quite clear on the authorities, just remembering what Lord Diplock said in Wentworth Securities, that the court must be able:

to state with certainty what were the additional words . . . Parliament –

would have used to overcome –

the omission –

for the clarification.  That cannot be done in this case.  The Court of Appeal could not do it and did not attempt to do it because you cannot state criteria.  That is a matter for legislation to do in relation to criteria of a grouping.

The next matter is my learned friend took your Honours to page 49 of the judgment of Justice Chernov where for his “second reason” was the fact that some requests referred to others.  In a sense, you are damned if you do and you are damned if you do not.

I mean, that was done so it would assist the Department because you would not have to go to look at those particular documents but that does not assist the argument of any group or not because looking at one request that does have a reference to another that, in itself, if the evidence is appropriate, may mean that that one request means that section 25A can be relied upon. You do not need to group in relation to that.

Again, it indicates the criteria cannot be articulated in relation to groupings:  is it the same person; is it the same time the requests were made; is it the same topic or related topics?  It simply cannot be articulated.  For those reasons we say the Court of Appeal fell into serious error.  If the Court pleases.

GLEESON CJ:   We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is refused with costs.

AT 11.22 AM THE MATTER WAS CONCLUDED