Kirk and Department of Veterans' Affairs

[2005] AATA 1225

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2005/30

GENERAL ADMINISTRATIVE   DIVISION		)
Re		ROBERT PETER KIRK

Applicant

And DEPARTMENT OF VETERANS' AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 5 December 2005

PlaceHobart

Decision The Tribunal determines that it is not appropriate to reinstate the application pursuant to the provisions of s42A(9) of the Administrative Appeals Tribunal Act 1975.

..............................................

Part-Time Member

CATCHWORDS

Veterans’ Affairs – application for reinstatement – whether appropriate to reinstate – not appropriate to reinstate

Schramm v Repatriation Commission 1998 12847A

Rossi Harris v Comcare 2001 AATA 492

Booth v Secretary, Department of Family and Community Services 1998 53 ALD 123

Phillips v Repatriation Commission 2001 AATA 943

Huisman v SDE and Workplace Relations 2005 AATA 885

Freedom of Information Act 1982 – s55(1)

REASONS FOR DECISION

Ms A F Cunningham (Part-time Member)           

1.      The applicant sought the review of a reviewable decision made on 22 February 2005 which held that no additional documents had been found pursuant to the applicant’s request of the documents under the Freedom of Information Act 1982 (FOI Act).  The decision was made subsequent to an earlier decision of a Freedom of Information Officer dated 7 January 2005 which determined to release folio’s 22-24 of departmental file TSR7026, M2 in full. 

2.      The applicant had sought access under the FOI Act to the following information from departmental files “documents revealing the identity and appointment level of the person who authorised and compiled the fifty pages of DVA documents located within the “psych section” of a medical file produced to the AAT by the Royal Hobart Hospital under summons dated 03/11/2000”.  The decision of the Freedom of Information Officer made on 7 January 2005 was “to release the above documents in full” and provide copies of the documents.  Mr Grube, in his decision went on to state “these letters indicate that the matter you have raised has already been investigated and an answer provided to you.   I am unable to add anything further to these letters.”

3.      In the reviewable decision of 22 February 2005 it was also stated “I have also examined the DVA files relating to you and have found that no additional document is covered by your request.   Therefore, after examination of the files, I have decided to affirm the decision of Mr Grube.”

4. As a result of the applicant’s failure to attend without explanation a directions hearing on 18 August 2005, the Tribunal determined to dismiss the application pursuant to s42A(2) of the Administrative Appeals Tribunal Act 1975.    The applicant has made an application to the Tribunal for reinstatement of his application pursuant to the provisions of sub-section 42A(8).     In accordance with the provisions of subsection (9) the application maybe reinstated by the Tribunal if it considers it appropriate to do so.”   The application for reinstatement was opposed by the respondent on the following grounds:

(1)That reinstatement would be futile in that the Tribunal lacks jurisdiction to review the decision in accordance with the provisions of s55 of the FOI Act.

(2)That the reinstatement would be inappropriate because the application for review is frivolous or vexatious.

(3)That the applicant has provided no acceptable explanation for the failure to appear at the directions hearing on 18 August 2005.

5.      It was submitted by Mr Wilson on behalf of the respondent that in the exercise of its discretion as to whether the application should be reinstated pursuant to s42A of the Act, the Tribunal should give consideration to the above listed matters.    There was no opposition to this course and Mr Kirk agreed that in the event of the Tribunal agreeing to reinstate his application, the Tribunal could then proceed to determine its jurisdiction to review the decision and Mr Wilson’s contention that the application should be dismissed pursuant to s42B of the Act on the basis that it is frivolous or vexatious.

6.      It was submitted by Mr Wilson that even if the Tribunal was satisfied that there was a reasonable explanation for Mr Kirk’s failure to attend the hearing on 18 August, it could nevertheless exercise its discretion pursuant to sub-section 9 to decline to reinstate the application for reasons such as lack of jurisdiction to determine the application or that the application lacked merit.

7.      It is clear from the wording of sub-section 9 that the Tribunal has a discretion with respect to reinstatement where “it considers it appropriate to do so”.  The Tribunal considered its discretionary power to reinstate an application which may have been dismissed in error in the decision of Schramm v Repatriation Commission 1998 12847A.  In that decision Deputy President Burns was considering the terminology used in sub-section 42B(10) and held “the Tribunal is of the view that there is nothing in the Act generally or in the words of s42A(10) to suggest that reinstatement was intended to flow automatically upon it appearing to the Tribunal that an application had been dismissed in error”. 

8. After considering the phrase “on its own initiative” appearing in s42A(10) and the phrase “if it considers it appropriate to do so” appearing in s42A(9), Deputy President Burns went on to state that “both phrases strongly suggest that the Tribunal is under no obligation to reinstate in either situation”.

9.      In its consideration of an application for reinstatement, this approach has been followed by the Tribunal on many occasions where the Tribunal has declined to reinstate an application where it is demonstrated that it had little prospect of success or there was no jurisdiction to consider the issue.  Reference is made to the decision of re Rossi Harris v Comcare 2001 AATA 492 where Senior Member Webster found that nothing would be gained by reinstating the application which had little prospect of proceeding to a hearing and where it appeared that the Tribunal had no jurisdiction to consider the issue of wrongful dismissal. 

10.     Similarly in the decision re Booth and Secretary, Department of Family and Community Services 1998 53 ALD 123 the Tribunal declined to exercise its discretion pursuant to s42A(10) where no substantive merit of the application could be demonstrated. The line of reasoning in Booth’s decision was followed in Phillips v Repatriation Commission 2001 AATA 943.  In the Tribunal’s decision of re Huisman v SDE and Workplace Relations 2005 AATA 885 it was held that the prospects of a successful appeal were relevant in the Tribunal’s consideration of whether it was appropriate in the circumstances of that case to reinstate the application.

11.Mr Kirk’s application for review was received by the Tribunal on 7 March 2005 and originally listed for a preliminary conference on 9 May 2005.  The conference was vacated at the request of Mr Kirk and subsequently relisted for 24 May 2005.  On 23 May 2005 Mr Kirk informed the Tribunal that he was unable to attend due to two recent bereavements.  A conference was held on 17 June 2005.  The application was subsequently listed for hearing on 4 August 2005 which was changed to a Directions Hearing at the request of Mr Kirk.  Mr Kirk attended at the Registry on 28 July and requested a two week adjournment.  The respondent did not agree to the adjournment.  Mr Kirk did not attend the Directions Hearing on 4 August.  The Tribunal subsequently viewed a copy of a letter dated 4 August 2005 from Dr P J Sheehan in which he stated that he had examined Mr Kirk that day and that he commended “his plan for a deferment of his meeting with you by the time period he suggests”. 

12. Mr Wilson on behalf of the respondent made an oral application under s42A(2) of the Act. The Tribunal declined to determine the application and adjourned it for hearing on 18 August 2005. Also adjourned to that date was the respondent’s application for a determination in relation to the Tribunal’s jurisdiction to hear Mr Kirk’s application for review. A letter was forwarded to Mr Kirk advising him of the further listing on 18 August 2005 for the determination of the s42(A) application and the jurisdictional hearing. The applicant was directed to submit any proofs of evidence upon which he seeks to rely and any written submissions in response within seven days.

13.      On 10 August 2005 Mr Kirk contacted the Registry and stated that he was an in-patient at St Helens Hospital but expected to be discharged shortly.   He was advised of the listing on the 18 August and that a letter had been forwarded to his home address in relation to the listing. 

14. There was no appearance by or on behalf of Mr Kirk on 18 August nor had the Tribunal received any explanation for his non-attendance. The Tribunal made an Order dismissing his application pursuant to the provisions of s42A(2) of the Act.

15.      An application for reinstatement pursuant to sub-section 8 was subsequently made and the matter was listed for hearing on 3 November 2005.  The respondent requested a Directions Hearing in the interim which was convened on 28 October 2005.  Despite both parties having been forwarded written notice of the Directions Hearing, Mr Kirk informed the Registry when he attended on 26 October that he was unaware of the listing and would be unable to attend the Directions Hearing on 28 October.  No directions were made by the Tribunal on 28 October 2005. 

16.      The Tribunal had before it a copy of a statement from Dr Sheehan dated 22 August 2005 stating that Mr Kirk had been an in-patient at St Helens Hospital between 3 August to 15 August 2005 and “thereafter he tells me he was ill a further five days with belly and back troubles which I can confirm the presence”.  In correspondence to the Tribunal Mr Kirk advised that following his discharge from St Helens Hospital he spent five days recuperating with friends.  Mr Kirk had not received his mail regarding the listing on 18 August 2005.

17.      Whilst Mr Kirk may have belatedly explained the reasons for his non-attendance on 18 August 2004, the issue remains as to whether it nevertheless is “appropriate” to re-instate the application or whether a re-instatement would prove futile in the event that the Tribunal has no jurisdiction to determine the appeal in any event. 

18,      The events leading up to Mr Kirk’s application for review of the decision under the FOI Act commenced with the issue of a summons to the Royal Hobart Hospital with respect to another AAT proceeding T2000/116.  The records were produced to the AAT on or before 29 October 2000 and were the subject of Tribunal directions regarding their access.  As stated in the respondent’s submissions:

“The records produced to the AAT by RHH included copies of some documents (the DVA documents) which it has been suggested are copies of documents which may have been sourced from files kept by the Department of Veterans’ Affairs (DVA).  In a letter dated 17 May 2001 to Mr Kirk – ST2/40 – these documents were described by the District Registrar of the AAT as follows:

The DVA documents were included in the Royal Hobart Hospital medical file (unit record number 38-16-25 in the name of Robert Kirk) which was produced to the Tribunal under summons dated 3 November 2000.  They were located in a section of the file marked “PSYCH” directly behind the red “accident and emergency” and the green “medical progress notes” pages.   They comprise of 50 pages”.

19.      The respondent’s submissions go on to state that on 10 and 30 May 2001 Mr Kirk wrote to the Minister for Veterans’ Affairs and the Secretary of DVA about the DVA documents – ST1/31-32;  ST2/39,41.   The letters were treated as an FOI request and a reply was sent by the DVA Privacy/FOI Officer, Mr Norman Kalagayan on 12 June 2001 – ST1/38 advising Mr Kirk that “The department has investigated the matter and has found no record of any DVA files in the custody of RHH”. 

20.      The matter was subsequently further investigated by Mr Paul Pirani, Branch Head of the Legal Services Group within DVA.   Mr Pirani advised Mr Kirk in a letter dated 13 July 2001 that apart from several releases of documents to Mr Kirk in response to FOI requests; “The department’s file indicates that there have been no other releases of documents from the department’s files.  In particular, there is no indication that any documents have been provided by the department or departmental officers to the Royal Hobart Hospital”.

21.      In a subsequent letter the CEO of the RHH dated 28 November 2002, Pat Martin advised Mr Kirk regarding correspondence from Department of Veterans’ Affairs (DVA) on Mr Kirk’s hospital file,

“That information appears to have been provided in relation to an admission to hospital in December 1992 or alternatively, attendances at the psychiatric out-patient clinic in July 1978.

It appears that admission and those attendances at the hospital related in part to your concerns regarding your dealings with Veterans’ Affairs.  Therefore, it is very likely that the information was provided to the hospital in order to assist the clinical staff to better understand your concerns and provide you with treatment”.

22.      At the hearing before the Tribunal Mr Kirk stated that he was not in receipt of a DVA pension at the time of his hospital admissions.  His pension was first granted to him in 1997.  He therefore disputed the existence of a DVA file prior to that time.  Mr Kirk informed the Tribunal however that he had first applied for a DVA pension in 1967 and had made successive applications over the next 30 years which had all been denied.

23.      By letter dated 15 January 2003 Mr Kirk wrote to the Deputy Commissioner DVA asking for “a more detailed explanation seeing that this 50 page dossier of DVA origin ... has been identified as emulating from the Department of Veterans’ Affairs”.  In a subsequent letter to Mr Kirk the Secretary DVA responded in a letter to Mr Kirk on 7 May 2003:

“I am advised that the position has not changed from that set out in the letter to you from Mr Pirani dated 21 June 2001 ... I am further advised that there is nothing on the files held by this department relating to you to indicate that any documents were released by this department to the Royal Hobart Hospital.

As this department is not able to examine the documents in issue, and is therefore unable to verify either the contents of the documents or their source, there appears to be nothing that I can possibly do to address your concerns”.

24.      Mr Kirk subsequently made a formal request under the FOI Act and an application to this Tribunal subsequent to the responses received as outlined in paragraphs 2 and 3 above.

25.      The Tribunal’s jurisdiction to review decisions made under the FOI Act is derived from s55.  The provisions relevant in the current case appear in sub-section 1 as follows:

1)        Subject to this section, an application may be made to the Administrative   Appeals Tribunal for review of:

(a) a decision refusing to grant access to a document in accordance with a           request,or

(aa) a decision granting access to a document but not granting, in accordance      with a request, access to all documents to which the request relates; or

(ab) a decision purporting to grant, in accordance with a request, access to all      documents to which the request relates, but not actually granting that access

26.      Mr Kirk’s request seeks access to documents which showed who prepared or caused to be prepared the DVA documents of which copies are held on the RHH file,  as well as the position within DVA occupied by each such person.  Alternatively, it was Mr Kirk’s intention to seek information about who made or authorised the making of the actual copies of the documents held by RHH or who provided or authorised the provision of those copies to RHH.

27.      It was Mr Wilson’s submission that the issue of who provided the DVA documents to RHH was the subject of extensive correspondence between Mr Kirk and DVA prior to his FOI request.  Mr Wilson contended that the correspondence made it clear to Mr Kirk that he had been provided with as much information as DVA could provide.  He was informed that the matter had been investigated and there was no indication in the DVA files that DVA or any officer of DVA had provided any documents to RHH.  Mr Wilson submitted that there are other means by which those documents could have been provided to RHH.  For instance by Mr Kirk himself or his medical practitioner.  Mr Wilson submitted that after all relevant searches no document had been discovered which evidenced the authorisation of any DVA documents being released to RHH.  Mr Wilson contended that there is no evidence before the Tribunal that any such document exists.

28.      Consequently Mr Wilson submitted that the reviewable decision is not a decision which falls within any of the categories of decisions which may be the subject of an application to the AAT under s55(1) of the FOI Act.  The original decision was to release to Mr Kirk all documents in full and provide copies.  Those  documents comprised letters which indicated that the matter raised by Mr Kirk had already been investigated and an answer provided.  The reviewable decision of 22 February 2005 indicated that an examination of the DVA files found that no additional document was covered by Mr Kirk’s request.   The decision under review was affirmed.

29.      Mr Wilson submitted that the decision was not one falling within sub-section 55(1)(a) as it was not a decision refusing to grant access to a document.  Nor was it a decision under sub-section (aa) which is a decision granting access but not granting in accordance with a request, access to all documents to which the request relates.  Nor was it a decision under sub-section (ab)  being a decision purporting to grant access but not actually granting that access.   The other sections are clearly not relevant.

30.      It is clear from the decisions under review that Mr Kirk was granted access to all identified documents falling within his request and that copies of all such documents identified had been released to him.  It is not alleged by Mr Kirk that there are documents meeting the terms of his request to which access has not been granted, nor is there any evidence before the Tribunal that such documents exist.  It is therefore clear that the application does not fall within the provisions of sub-paragraph (aa).

31.      As there is no evidence that DVA has any other documents falling within the FOI request, the Tribunal cannot be satisfied that the decision granting access is a purported decision in that it is not actually granting full access within the meaning of sub-paragraph (ab).

32.      Mr Kirk’s application for review does not fall within any of the provisions of s55(1) of the FOI Act, therefore the Tribunal has no jurisdiction to hear his appeal.

33.      As discussed at the Directions Hearing Mr Kirk’s searches may be better channelled through other avenues.  It was and had previously been recommended that Mr Kirk approach the Privacy Commissioner regarding his concerns.

34. The Tribunal having determined that it has no jurisdiction to hear Mr Kirk’s appeal determines that it is not appropriate to reinstate his application pursuant to the provisions of s42(A)(9) of the Administrative Appeals Tribunal Act 1975. Nothing would be gained by reinstating an application that the Tribunal had no jurisdiction to hear.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:   R Hunt (Administrative Assistant)

Date/s of Hearing  3 November 2005
Date of Decision  5 December 2005
Counsel for the Applicant         Appeared on his own behalf
Counsel for the Respondent     Mr David Wilson
Solicitor for the Respondent     Australian Government Solicitor