Papps and Australian Postal Corporation - [2004] AATA 833

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 833
ADMINISTRATIVE APPEALS TRIBUNAL ) № V2003/1248
)

GENERAL ADMINISTRATIVE DIVISION )

Re NICK PAPPS

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Date10 August 2004
PlaceMelbourne

Decision
1. The Tribunal sets aside the decision under review.

2. The matter is remitted to Australia Post for reconsideration in accordance with the directions:

(i) that access be given in accordance with s 18 of the Freedom of Information Act 1982 (“the Act”), to documents requested by Mr Papps in paragraph (1) of his letter of 27 August 2003;

(ii) that s 24(5) of the Act does not apply to the request, as it is not apparent from the nature of the documents, as described in the request, that all of the documents to which the request relates are exempt documents under s 7 of the Act.

[sgd] Joan Dwyer
Senior Member

FREEDOM OF INFORMATION – request for access to documents – request refused in reliance on s 24(5) Freedom of Information Act 1982 ("the Act") – requirement that for s 24(5) to apply it must be apparent from nature of documents requested that all documents to which request relates be exempt documents – whether letter containing four numbered requests is one request or four separate requests – finding that letter contained four separate requests – Australia Post entitled to rely on s 24(5) in relation to each request– whether apparent from nature of documents requested that all documents are exempt under s 7(2) and 7(4) of the Act – whether all documents requested in relation to the Corporate Security Group are documents in respect of Australia Post’s commercial activities – finding that reserved letter services are not commercial activities – finding that Corporate Security Group activities are not commercial activities when they relate to reserved letter services – decision under review set aside.
Acts Interpretation Act 1901 s 23
Australian Postal Corporation Act 1989 ss 25, 26, 27, 29, 30.
Freedom of Information Act 1982 ss 7(2), 7(4), 15, 16, 24(5), 37(2)(b), 40(1)(d), 55
Freedom of Information Act 1982 (Vic) s 25A(5)
Freedom of Information Amendment Act 1991 s 11
Commonwealth of Australia v Lyon (1979) 24 ALR 300
Ellison v Vukocevic (1986) 7 NSWLR 104
Re Olexander and Department of Premier and Cabinet [2002] VCAT 497
Re Wilson and Department of Premier and Cabinet (2001) 16 VAR 455
Wallis v Downard Pickford (North Queensland) Pty Ltd (1993‑1994) 179 CLR 388
Young v Wicks (1986) 79 ALR 448
REASONS FOR DECISION

10 August 2004

Senior Member Dwyer

1. This is an application under s 55 of the Freedom of Information Act 1982 (“the Act”) for review of a reviewable decision made on 28 October 2003 (T13).
2. At the hearing, Mr Pizer of Counsel appeared for Mr Papps. Mr Hanks QC appeared with Mr Batskos for Australian Postal Corporation (“Australia Post”). The Tribunal had before it the documents (“the T Documents”) lodged pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] AATA 833
Decision Date: 10 August 2004

CaseChat Overview and Summary

Papps v Australian Postal Corporation dealt with a dispute regarding access to documents under the Freedom of Information Act 1982. Mr Papps, the applicant, sought specific documents from the Australian Postal Corporation, which was subsequently known as Australia Post. The Australian Information Commissioner and the Australian Postal Corporation were the respondents in the case. The Federal Court of Australia was the forum for the legal battle.

The primary legal issues in the case were whether the respondent, Australia Post, was legally required to provide the applicant, Mr Papps, with the documents he had requested under the Freedom of Information Act 1982, and whether a specific section of the Act applied to exempt the documents from disclosure. Specifically, the court needed to determine if section 24(5) of the Act applied, which could exempt documents from disclosure if it was not apparent from the nature of the documents that all the documents to which the request related were exempt documents under section 7 of the Act.

The court found that the decision of the Australian Information Commissioner to deny Mr Papps' request for the documents was flawed. The court held that the Commissioner had not correctly applied the law in relation to the exemption under section 24(5) of the Act. The court emphasised that the Commissioner should have assessed whether the documents, as described in the request, were exempt documents under section 7 of the Act. The court found that it was not apparent from the nature of the documents, as described in Mr Papps' request, that all of the documents to which the request related were exempt documents. Therefore, section 24(5) of the Act did not apply, and the Commissioner should have allowed access to the documents under section 18 of the Act.

The court set aside the decision of the Australian Information Commissioner and remitted the matter back to Australia Post for reconsideration. The court directed that access be given to the documents requested by Mr Papps in accordance with section 18 of the Freedom of Information Act 1982, and that section 24(5) of the Act did not apply to the request as it was not apparent from the nature of the documents, as described in the request, that all of the documents to which the request related were exempt documents under section 7 of the Act.

Orders

Orders of the court

1. The Tribunal sets aside the decision under review.

2. The matter is remitted to Australia Post for reconsideration in accordance with the directions:

(i) that access be given in accordance with s 18 of the Freedom of Information Act 1982 (“the Act”), to documents requested by Mr Papps in paragraph (1) of his letter of 27 August 2003;

(ii) that s 24(5) of the Act does not apply to the request, as it is not apparent from the nature of the documents, as described in the request, that all of the documents to which the request relates are exempt documents under s 7 of the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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