Knowles v Australian Information Commissioner

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FEDERAL COURT OF AUSTRALIA

Knowles v Australian Information Commissioner [2018] FCA 1212

File number: VID 688 of 2017
Judge: TRACEY J
Date of judgment: 15 August 2018
Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – where the applicant had applied for judicial review of four decisions of the Australian Information Commissioner – where the Commissioner sought summary dismissal of the whole application – whether the application should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) – whether the applicant has no reasonable prospect of successfully prosecuting the proceeding – whether there is a real question of contested law or fact that should be decided at trial
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(a), 5(1)(f), 5(1)(h), 5(2)(a), 5(2)(b), 6, 6(1)(b), 6(1)(e), 6(1)(f), 6(2)(a), 6(2)(b), 6(2)(f), 10(2)(b)(ii), 16(1)(a), 16(1)(b), 16(1)(c)

Federal Court of Australia Act 1976 (Cth) s 31A

Freedom of Information Act 1982 (Cth) ss 15(5)(b), 15AB, 15AB(2), 15AC(3)(a), 54N(3), 54V, 54W, 54W(a)(i), 55, 55(4)(c), 55DA, 55G(1)(b), 56, 68, 69, 70

Privacy Act 1988 (Cth) ss 36, 40, 40A, 40A(5), 41, 41(1)(e), 41(2)(a), 52, 55A, 55A(5), 96(1)(c), APP 3.5, AAP 12, APP 12.4(a)(i)

Telecommunications (Interception) Act 1979 (Cth)

Federal Court Rules 2011 (Cth) r 26.01

Surveillance Devices Act 2004 (NSW)
Cases cited:

Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 at 34; [1995] FCA 372

Chappell v Griffin Coal Mining Company Pty Ltd [2016] FCA 1248

De Costi Seafoods (Franchises) Pty Limited v Wachtenheim (No 2) [2012] NSWDC 286

Edelsten v Minister for Health (1994) 58 FCR 419; [1994] FCA 82

Eliezer v University of Sydney (2015) 239 FCR 381; [2015] FCA 1045

Ibarcena v Secretary, Department of Family and Community Services (2001) 33 AAR 76; [2001] FCA 453

“LP” and The Westin (Privacy) [2017] AICmr 53

Mayne Nickless Limited v Transport Workers’ Union of Australia [1998] FCA 984

Date of hearing: 13 December 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 130
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Mr L Holcombe of HWL Ebsworth

ORDERS

VID 688 of 2017
BETWEEN:

KIERAN JOHN MURRAY KNOWLES

Applicant
AND:

AUSTRALIAN INFORMATION COMMISSIONER

Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

15 AUGUST 2018

THE COURT ORDERS THAT:

1.The respondent’s application for summary judgment be granted.

2.The applicant’s amended originating application dated 30 June 2017 be dismissed.

3.The applicant pay the respondent’s costs of the application for summary judgment.

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


REASONS FOR JUDGMENT

TRACEY J:

  1. The applicant, Mr Kieran Knowles, has sought review of four decisions of the respondent, the Australian Information Commissioner (“the Commissioner”).

  2. Mr Knowles’s amended application was made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). He also sought to invoke certain review and enforcement mechanisms under the Freedom of Information…

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Details
Case
[2018] FCA 1212
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the Commissioner sought summary dismissal of the whole application for judicial review brought by Mr Knowles, who challenged several decisions made by the Commissioner under the Freedom of Information Act 1982 (Cth). The legal issues before the Court were whether the application should be summarily dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), and if the applicant had no reasonable prospect of successfully prosecuting the proceeding, or if there was a real question of contested law or fact that should be decided at trial.

The Court held that the Commissioner had discharged the onus of establishing that Mr Knowles’ application had no reasonable prospect of success. The Court found that the applicant’s claims, including the assertion that the Commissioner had taken into account an irrelevant consideration, were implausible or improbable. Furthermore, the Court was satisfied that there appeared to be no real question of law or fact to be determined. Consequently, the Court granted the Commissioner’s application for summary dismissal and dismissed Mr Knowles’ amended originating application. The Court ordered that the applicant pay the respondent’s costs of the application for summary judgment.

Orders

Orders of the court

1. The respondent’s application for summary judgment be granted.

2. The applicant’s amended originating application dated 30 June 2017 be dismissed.

3. The applicant pay the respondent’s costs of the application for summary judgment.

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

Background

Background to the litigation

The Commissioner seeks summary dismissal of the whole application and costs. Alternatively he seeks orders that the first three decisions be dismissed summarily, that The Westin decision be the subject of a separate proceeding, and that costs be reserved. BACKGROUND The relevant facts drawn from those agreed between the parties are set out below. I have also referred to other matters, not expressly agreed, which I do not consider to be controversial.The s 15AB decision On 17 October 2016 Mr Knowles made an FOI application to the Department to access documents. About seven months later, on 19 May 2017, the Department applied to the Commissioner for further time to respond. It did not tell Mr Knowles that it had done so. On 24 May 2017 the Commissioner’s delegate granted the Department an extension until 27 June 2017 under s 15AB(2) of the FOI Act (“the s 15AB decision”) without first consulting with Mr Knowles. On the same day the Commissioner informed the Department and Mr Knowles of the decision by separate emails. Mr Knowles later complained to the Commissioner about the lack of consultation.The s 54W decision In the meantime, on 27 October 2016, the Department informed Mr Knowles by notice that, under s 29 of the FOI Act, he was to pay $60 in processing fees. He sought internal review of the decision that day. On 23 November 2016 he was advised by the Department that the charges would stand. He sought review by the Commissioner on the same day. Each party made submissions. On 6 April 2017 the Commissioner suggested that the Department should vary its decision under s 55G(1)(b) of the FOI Act and waive the charges. It did so on 5 May 2017 and told Mr Knowles on 8 May 2017. It also told him that time under s 15(5)(b) would recommence. On 7 June 2017 Mr Knowles advised the Commissioner that he would not withdraw his review application. On 16 June 2017 a delegate of the Commissioner discontinued the review under s 54W(a)(i) of the FOI Act because, as a result of the waiver, there was no longer an “IC reviewable decision” for the Commissioner to consider and the application was lacking in substance. The letter advising Mr Knowles of the decision contained a paragraph which advised that, “if you wish to make a FOI complaint under s 70 of the FOI Act, about the Department’s actions in the performance of its functions, or the exercise of its powers, under the FOI Act, that is also open to you.”The proposed s 41 decision On 25 November 2016, Mr Knowles applied to the Department under Australian Privacy Principle 12 (“APP 12”) for access to all records containing his personal information which had been created from October 2011 to March 2012 and May to October 2016. The Department acknowledged the application on 30 November 2016. Following a query by Mr Knowles, the next day it indicated that it would endeavour to action his application as soon as possible but would not provide an expected response date. On 22 December 2016, the Department provided some documents to Mr Knowles. While it was not refusing access to the other documents which fell within the terms of the request, it would not provide an expected response date. Mr Knowles offered an extension until 9 January 2017. The Department did not respond until after he complained to it on 30 January 2017.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court’s power to dismiss summarily a proceeding pending before it is conferred by s 31A of the Federal Court of Australia Act 1976 (Cth). That section provides, relevantly, that:31ASummary judgment…(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:(a)the first party is defending the proceeding or that part of the proceeding; and(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.(3)For the purposes of this section, … a proceeding or part of a proceeding need not be:(a) hopeless; or(b) bound to fail;for it to have no reasonable prospect of success.… The principles which guide the Court in the exercise of the discretion conferred on it by s 31A were recently and helpfully summarised by Perry J in Eliezer v University of Sydney (2015) 239 FCR 381 at 391-392; [2015] FCA 1045 at [35]-[40]:35First, the respondents as the moving parties bear the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 (Cassimatis) at [45] (Reeves J).36Secondly, as the respondents submit, the intention behind the enactment of s 31A is “to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130”: White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 (White Industries) at [54] (Lindgren J); see also Cassimatis at [46] (Reeves J). In the cases to which Lindgren J referred in White Industries, the requirement had been expressed in such terms as “manifestly groundless” or “hopeless”. As Hayne, Crennan, Kiefel and Bell JJ held in Spencer v Commonwealth (2010) 241 CLR 118 (Spencer) at [52]-[53]:… effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is “hopeless” or “bound to fail”. … [I]t is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the inquiry required in this case is whether there is a “reasonable” prospect of prosecuting the proceeding, not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered.37Thirdly, the assessment required by s 31A of whether a proceeding has no reasonable prospects of success necessitates the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 (Kowalski) at [28] (the Court). That discretion includes whether to deal with the motion at once or at some later stage in the proceedings when the legal and factual issues have been more clearly defined: Butorac v WIN Corporation Pty Ltd [2009] FCA 1503 at [19] (Buchanan J); Cassimatis at [50] (Reeves J).38In the fourth place, despite the threshold for summary dismissal having been lowered, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)). Consistently with this, the discretion is concerned “with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”: White Industries at [50] (Lindgren J) (approved in Kowalski at [30] (the Court); see also Spencer at [23] (French CJ and Gummow J)).39Finally, in his Honour’s helpful explanation of how these principles are to be applied, Reeves J in Cassimatis further explains at [46] that: … the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.40To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is implausible, improbable, tenuous or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

Ratio Decidendi

Legal Principle Established

Mr Knowles made an additional submission that s 15AB impliedly required the Commissioner to make inquiries and obtain relevant information to inform his consideration of the mandatory considerations. This duty was said to be consistent with his procedural fairness obligations.Irrelevant considerations Mr Knowles submitted that the Commissioner had erred by taking into account an irrelevant consideration. The main reason the Department had sought an extension of time was that it did not wish to confer with him. This was recorded in an earlier s 15AB application. The Commissioner’s office had assisted the Department to reshape its application. Despite this the Department’s original improper purpose remained as the primary reason for its application. The Commissioner, he said, was aware that this reason was the real basis of the Department’s application. The Department’s desire to avoid communicating with him was an irrelevant consideration. The Commissioner had erred by taking it into account when granting the Department’s request.Other arguments Mr Knowles also made a number of submissions which invoked grounds other than those raised in his amended application for review. Some of these submissions traversed familiar claims. He submitted that the s 15AB decision was arbitrary, capricious and made without proper consideration of the statutory elements. This submission was supported by claims which he had agitated in relation to the grounds recorded above. First, a large amount of time (about six months) had been lost due to the charges dispute. Secondly, the extension application was very late (made only six business days before the decision was due). Thirdly, the Commissioner’s policy manual stated that procedural fairness required the views of an FOI applicant to be sought there an agency had omitted to notify him or her of the s 15AB application. Fourthly, the Commissioner was aware the Department had previously refused to carry out certain searches. Fifthly, he had been prejudiced by the imposition of the charges which the Commissioner acknowledged were inconsistent with the FOI Act. Sixthly, as the Commissioner had consulted the Department, so too could he have consulted Mr Knowles. Mr Knowles also sought to have adverse inferences drawn from the time that the Commissioner’s delegate had taken to deal with the Department’s application and from statistics about historical decisions made by the Commissioner under s 15AB. He referred to the Commissioner’s submission of December 2012, to the review of freedom of information legislation conducted by Dr Allan Hawke AC, where he stated (at p 2) that the FOI Act is “a piece of legislation that is unwieldy, confusing, and difficult to interpret” and on “important issues such as calculating the FOI processing period, granting extensions of time and consulting third parties, the OAIC has spent countless hours working out what the Act means”. In the same submission the Commissioner stated (at p 37) that, “in addition to the volume of work created by the extension of time provisions, the provisions themselves are complex and, in places, unclear”. Despite this, he had said (at p 36), that the office “endeavours to respond to extension of time requests from agencies within five working days”.