FEDERAL COURT OF AUSTRALIA
Matson v Australian Information Commissioner (No 2) [2021] FCA 690
File number(s): QUD 288 of 2020 Judgment of: COLLIER J Date of judgment: 23 June 2021 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file originating application for judicial review – Freedom of Information Act 1982 (Cth) – whether the applicant showed an acceptable explanation for the delay in filing the substantive application – where applicant held on remand in custody in correctional facility – where delay resulting in part from systemic effect of COVID-19 – where applicant informed of “review rights” by decision maker – whether the respondent would suffer prejudice as a result of the grant of an extension of time to file the substantive application – whether the substantive application had reasonable prospects of success – absence of particularisation. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Freedom of Information Act 1982 (Cth) ss 3, 9A, 24A, 54W, 93A
Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 186
Lucic v Nolan (1982) 45 ALR 411; [1982] FCA 217
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 168 Date of last submission/s: 6 May 2021 Date of hearing: Determined on the papers Solicitor for the Applicant: The applicant was self-represented Solicitor for the Respondent: Holding Redlich ORDERS
QUD 288 of 2020 BETWEEN: MR BARON MATSON
Applicant
AND: AUSTRALIAN INFORMATION COMISSIONER
Respondent
ORDER MADE BY:
COLLIER J
DATE OF ORDER:
23 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 8 December 2020 be dismissed.
2.The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLLIER J:
Before the Court is an application filed by Mr Baron Matson on 8 December 2020 for an extension of time (application for extension of time) to file an originating application for judicial review (substantive application) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of six separate decisions (decisions).
I understand that the substantive application is that annexed to the applicant’s affidavit filed on 8 December 2020. I note that the applicant had earlier filed an application for judicial review on 8 September 2020, however it appears that this earlier application was superseded by the document annexed to the 8 December 2020 affidavit. In any event, I note that although the formatting of the two documents is different, the content is materially the same.
The six decisions were made variously on 26 May 2020, 29 May 2020 and 10 August 2020 by a delegate of…
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Details
- Case
- [2021] FCA 690
- Decision Date
CaseChat Overview and Summary
The case of Matson v Australian Information Commissioner (No 2) involved an application for an extension of time to file an originating application for judicial review of a decision made under the Freedom of Information Act 1982 (Cth). The applicant, Matson, was being held on remand in custody at the Arthur Gorrie Correctional Centre and had been in custody since his arrest in October 2015. Matson had made a freedom of information request on 9 July 2018, which was refused by the Commonwealth Attorney-General’s Department on 10 August 2018, under s 24A(1)(b)(ii) of the FOI Act. Matson subsequently sought an internal review of the decision, which was not made within the statutory timeframe, leading to an affirmation of the original decision. Matson then sought review by the Information Commissioner and a complaint about the Department's handling of his request. The Information Commissioner acknowledged receipt of the review request and advised Matson that the review was a more appropriate mechanism to assess the merits of the FOI request.
The court was required to determine whether Matson had shown an acceptable explanation for the delay in filing the substantive application for judicial review. Factors considered included Matson's custody status, the systemic effects of COVID-19, and whether Matson had been informed of his review rights by the decision maker. The court also needed to assess whether the respondent would suffer prejudice as a result of the grant of an extension of time, and whether the substantive application had reasonable prospects of success, particularly in light of the absence of particularisation. The respondent argued that the substantive application had no reasonable prospects of success due to the lack of particularisation and the absence of any evidence to support Matson's claims.
The court found that Matson had not provided an acceptable explanation for the delay in filing the substantive application. The court noted that Matson had been informed of his review rights by the decision maker and that the delay was partly due to the systemic effects of COVID-19. However, the court found that Matson's custody status did not constitute an acceptable explanation for the delay. The court also found that the respondent would suffer prejudice if an extension of time was granted, as the substantive application had no reasonable prospects of success due to the absence of particularisation. The court dismissed the application and ordered Matson to pay the costs of the respondent.
The court was required to determine whether Matson had shown an acceptable explanation for the delay in filing the substantive application for judicial review. Factors considered included Matson's custody status, the systemic effects of COVID-19, and whether Matson had been informed of his review rights by the decision maker. The court also needed to assess whether the respondent would suffer prejudice as a result of the grant of an extension of time, and whether the substantive application had reasonable prospects of success, particularly in light of the absence of particularisation. The respondent argued that the substantive application had no reasonable prospects of success due to the lack of particularisation and the absence of any evidence to support Matson's claims.
The court found that Matson had not provided an acceptable explanation for the delay in filing the substantive application. The court noted that Matson had been informed of his review rights by the decision maker and that the delay was partly due to the systemic effects of COVID-19. However, the court found that Matson's custody status did not constitute an acceptable explanation for the delay. The court also found that the respondent would suffer prejudice if an extension of time was granted, as the substantive application had no reasonable prospects of success due to the absence of particularisation. The court dismissed the application and ordered Matson to pay the costs of the respondent.
Orders
Orders of the court
1. The application filed on 8 December 2020 be dismissed.
2. The applicant pay the costs of the respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
I note that it was in this context that the respondent made submissions regarding the prospects of the substantive application.BACKGROUND The applicant is being held on remand in custody at the Arthur Gorrie Correctional Centre (Correctional Centre). He has been held in custody since his arrest in October 2015. For the purposes of determining the application for extension of time, it is convenient to briefly set out the relevant background facts. Insofar as I can ascertain those background facts are not in dispute. They are helpfully set out in the submissions of the respondent, from which I extract the following summary.Decision 1 On 9 July 2018 the applicant lodged a freedom of information (FOI) request with the Commonwealth Attorney-General’s Department (Department) in the following terms:In relation to my original FOI request FOI17/034, which was refuse by the Attorney-General’s Department because of a practical refusal reason under section 24AA of the FOI Act, I seek access to a “Complete schedule of documents” for all documents/records identified as captured by the scope of my original request. In relation to my original FOI request FOI17/034 the Attorney-General’s Department has approximated there are 6600 pages contained in 600 documents and that it would take up to 33 hours to prepare a schedule detailing all relevant documents. (based on an average of 30 minutes per 10 documents).PLEASE NOTE: in a ‘Strategy and Delivering Division, Attorney-General’s Department” email released in the Department of Foreign Affairs and Trade FOI decision 1801-F1 864 (page 21 decision 1801-F1 864) the Attorney-General’s Department referring to my original FOI request FOI17/034 stated:“The statutory timeframe for processing this matter has expired as there have been lengthy discussions as to the scope of the request (request initially captured over 7000 records).”To be clear I am seeing the inclusion of all 7000 records to be prepared in a single schedule of documents. I am requesting the schedule detail the basic particulars of each document/record, such as [DATE]; [SIZE], [TYPE]; AND [DESCRIPTION].I am not seeking the [ACCESS GRANTED] or [EXEPMTIONS] to be detailed in the proposed “Complete schedule of documents” as I am not seeking access to any of the individual 7000 records at this time.(Errors in original). On 10 August 2018, the Department notified the applicant of its decision in relation to his request (10 August decision). In its decision, the Department refused the request under s 24A(1)(b)(ii) of the FOI Act on the basis that all reasonable steps had been taken to find documents and the Department was satisfied that documents falling within the scope of the request did not exist. Section 24A of the FOI Act relevantly provides:24A Requests may be refused if documents cannot be found, do not exist or have not been received Document 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.…
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 10 August 2018, the Department notified the applicant of its decision in relation to his request (10 August decision). In its decision, the Department refused the request under s 24A(1)(b)(ii) of the FOI Act on the basis that all reasonable steps had been taken to find documents and the Department was satisfied that documents falling within the scope of the request did not exist. Section 24A of the FOI Act relevantly provides:24A Requests may be refused if documents cannot be found, do not exist or have not been received Document 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.… Among other things, in the 10 August decision the Department explained to the applicant:With respect to your request above, I would like to draw your attention to the Office of the Information Commissioner’s Guidelines 2.33 and 2.34 which state that the right of access under the FOI Act is to existing documents, rather than to information. The FOI Act does not require an agency or minister to create a new document containing the information that is sought.…I have identified that the Attorney-General’s Department has no documents that fall within the scope of your request. I did this by arranging for a comprehensive search of the department’s electronic document management system and making inquiries of staff likely to be able to identify relevant documents On 16 August 2019, the applicant sought an internal review of the 10 August decision. In his internal review requested, the applicant stated:It is my respectful submission that my request F0118/103 dated 2 July 2018 was an exception in the limited circumstances described in section 2.33 of the Australian Information Commissioner Guidelines. I support my submission by the fact that the Attorney-General’s Department in conducting the preliminary searches for my original FOI request F0117/034 accessed and searched the Attorney-General’s Department electronic document management system, which subsequently created the database file detailing the 650 documents identified as falling within the scope of my request, outlined in Mr Gray’s decision F0117/034 dated March 2017. This information must have been created into some form of computer file; document or other discrete form as the information was relayed to me in the decision F0I17/034 dated March 2017. Pursuant to s 54D of the FOI Act, if an internal review decision is not made within the statutory timeframe a decision to affirm the original access refusal decision is taken to have been made. On 10 October 2018, the applicant sought IC review of the 10 August decision under s 54L of the FOI Act. The applicant also made a complaint about the Department’s handling of his request. On 24 October 2018, the respondent wrote to the applicant and acknowledged that the applicant’s IC review request had been received and the respondent was conducting preliminary inquiries. The respondent also advised that the IC review was a more appropriate and effective mechanism to assess the merits of the 9 July 2018 FOI Request, rather than a complaint.
Ratio Decidendi
Legal Principle Established
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