Marr, G.N. v Telstra Corporation Ltd

[1995] FCA 214

IN THE FEDERAL COURT OF AUSTRALIA     )

NEW SOUTH WALES DISTRICT REGISTRY     )    No.   G 284 of 1994

GENERAL DIVISION                )

Between:GEOFFREY NORMAN MARR

Applicant

And:TELSTRA CORPORATION LIMITED

Respondent

REASONS FOR JUDGMENT

EINFELD J                 SYDNEY             31 MARCH 1995

The applicant appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) under section 44 of the Tribunal's Act (AAT Act) refusing access to certain documents under the Freedom of Information Act 1982 (Cth) (the Act). The applicant was unrepresented at the hearing before me, but his written submissions, whilst not formulated perhaps as succinctly as might to be expected of a legal practitioner, are coherent and on the whole presented his case with force and cogency. The respondent was represented by senior counsel.

The proceedings before the Tribunal

On 31 March 1993 the applicant and another person applied under the Act for access to certain documents of the respondent.  As a result of that request, and a subsequent request for internal review of the original decision, access to some of the requested
documents was provided, part access was granted to others, and access to other documents was denied.

On 3 August 1993 the applicant applied to the Tribunal for a review of the decision in respect of the documents to which access was denied or restricted.  In a comprehensive judgment delivered ex tempore the Tribunal released a considerable portion of the disputed documents and reaffirmed the decision of the respondent in respect of a minority of the documents.

It became apparent during cross examination by the applicant in the proceedings before the Tribunal that certain documents properly the subject of the applicant's request had not been discovered or considered by the respondent.  As a result the Tribunal made a further direction at the conclusion of the hearing that each party make written submissions and if necessary file additional evidence in respect of these additional documents.

Pursuant to these orders additional evidence and submissions were received by the Tribunal, including some lengthy submissions by the applicant.  It is clear from those submissions that the applicant was concerned that the respondent had not, and did not intend to, produce to the Tribunal all the documents that were the subject of his application.  He said (AB232):

I further believe that Telstra's response is a calculated attempt to thwart my application and can only be considered as conduct in contempt of a lawful direction by the Tribunal.

The applicant referred to the fact that in the original trial he was able to establish under cross examination that additional documents existed that had not been produced in the original hearing.  A further submission was (AB234):

I ask that the Tribunal order Telstra to provide sworn evidence in support of any claim that they have already provided me with documents listed in 'Annexure A', including any claim that no other documents the subject of any particular item exists. ...

I further ask that I be given the opportunity to test the veracity of any such claims under cross-examination.

On 29 March 1994 the Tribunal heard oral argument on these further submissions.  There is no transcript of these proceedings, but I understand the applicant to allege, and the respondent not to deny, that the deponent of the only affidavit read by the respondent was not available for cross-examination.

Judgment on the additional documents was delivered on 22 April 1994.  Once again the applicant enjoyed some degree of success, gaining access to six documents, or types of document, out of 19 claimed to be exempt by the respondent.  At the end of its reasons for decision, the Tribunal made the following comments (AB244):

During these proceedings the Applicant claimed that the Respondent had not released or brought to the attention of the Tribunal all relevant documents.  There is no evidence before the Tribunal that the Respondent has not complied with its directions.  The duty of the Tribunal is to make the correct or preferable decision on the material before it but it (sic) still an administrative decision and not the order of a Court.  If it is alleged that the orders of the Tribunal have not been complied with, the Tribunal has no means to enforce its own orders but those orders could no doubt form the basis for an order of mandamus in the Federal Court.

... there is no evidence that deliberately false evidence has been given or that a contempt has been committed.  If it is alleged that a contempt has been committed by failure to comply with an order or direction of the Tribunal then proceedings must be taken in the appropriate Court of summary jurisdiction as all the legislation provides for is a fine of $1000 or three months imprisonment.  As stated above, if enforcement of the order is required then proceedings must be taken in the Federal Court.

The application to this Court
On 18 May 1994 the applicant filed a notice of appeal to this Court from the 22 April decision of the Tribunal.  The notice of appeal itself is quite long, and the supporting submissions, which have been made in writing, excluding annexures, run to 40 pages from the applicant alone.  In most respects the notice of appeal is misconceived.  It does little more than make generic statements such as the allegation:

That a breach of the rules of natural justice occurred in connection with the making of the decision.

and backs up these claims with general assertions unsupported by anything on the face of the decision or any evidence before me. 
Having considered the notice of appeal, and the submissions made by the applicant at some length, I have reached the view that the applicant does not raise any matter which could base a challenge to either of the two decisions of the Tribunal.  Indeed he does not seem to have a real complaint about the way the Tribunal dealt with the documents before it.  Certainly the notice of appeal does not appear, despite its length and the volume of supporting submissions, to directly attack or impinge upon the determinations made by the Tribunal in respect of those documents it did consider, or the process or procedure employed by the Tribunal in making those determinations.

The real issue

It is apparent from the papers that the real concern of the applicant is that the respondent failed to produce all relevant documents, and that the Tribunal did not have the opportunity therefore to rule on all the documents to which the applicant wanted access.  It is his basic contention that the entire proceedings were being subverted by deliberate obstruction by Telstra in both hearings before the Tribunal and in the proceedings in this Court.

If, as thus seems to be the case, the real purpose of this appeal was to force the respondent to produce additional documents to allow them to be ruled on by the Tribunal, then it is entirely inappropriate to accomplish this end.  There is no evidence before the Court to allow any finding to be made in this regard, nor is this an appropriate proceeding for the making of any such order.  This is because an appeal under section 44 of the AAT Act can only review legal errors of the Tribunal, whereas the order sought would require either contempt proceedings, a writ of mandamus or some similar procedure for review of the original actions or decisions of the respondent.

Having regard to the fact that the applicant is not legally represented, I am prepared to allow some latitude in this regard.  I propose to adjourn this application and, after consideration has been given to these reasons for judgment, to relist the matter on this remaining issue to allow the applicant to indicate whether he wishes to file a new application in this matter, or amend the current application, and if so to allow for a discussion as to whether he should be permitted to do so.  If necessary I will then hear evidence and argument on that application or, if the proceedings are or can be adequately reconstituted, on the revised application.