Patel v Australian Information Commissioner - [2017] FCCA 1515

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v AUSTRALIAN INFORMATION COMMISSIONER & ANOR

[2017] FCCA 1515

Catchwords:

ADMINISTRATIVE LAW – Review of decision of Australian Information Commissioner – whether the application lacked substance – whether the application for review was correctly assessed.

PRACTICE & PROCEDURE – Application for reinstatement involving consideration of extension of time application for an order for review under s.11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the applicant’s application has sufficient merits for reinstatement – no reasonable grounds – application for reinstatement dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.11

Freedom of Information Act 1982 (Cth), ss.54W, 55G, Pt.7

Applicant:

PRATHAMESH PRABHUDAS PATEL

First Respondent:

AUSTRALIAN INFORMATION COMMISSIONER

Second Respondent:

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

File Number:

SYG 838 of 2017

Judgment of:

Judge Smith

Hearing date:

2 June 2017

Date of Last Submission:

2 June 2017

Delivered at:

Sydney

Delivered on:

21 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent:

Holding Redlich

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 838 of 2017

PRATHAMESH PRABHUDAS PATEL

Applicant

And

AUSTRALIAN INFORMATION COMMISSIONER

First Respondent

SECRETARY, DEPARTMENT OF IMMIGRATION & BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

On 30 March 2017, the applicant lodged an application for review of a decision of the Office of the Australian Information Commissioner (OAIC). The issue for determination arises from the fact that the proceedings were dismissed when the applicant failed to appear at the first directions hearing of the matter. The application before the Court is for an order setting aside that dismissal.
There are relevantly two issues: first, whether the applicant has a reasonable excuse for his failure to appear and, secondly, whether there is sufficient merit in the substantive proceedings.
I am satisfied that there was a good reason for the applicant’s failure to attend at the directions hearing. The applicant lives in Leeton, New South Wales, a town more than 5 hours by road from Sydney. The applicant travelled by train to Sydney in order to attend the directions hearing, but the train was delayed by three hours and he arrived at Court too late to appear.
The determinative issue then is whether there is sufficient merit in the substantive application. Given the reasons for the applicant’s failure to attend, those merits do not have to be substantial to justify an order setting aside the order dismissing the proceedings.
Before turning to the merits, I note that there is no other factor that is of any significant weight in this matter. There would be no real prejudice to either respondent if the orders were set aside other than the costs that would be incurred in the further conduct of the proceedings. The applicant has not pointed to any detriment that he might suffer other than the inability to have his case determined at a final hearing. As will be seen…

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: [2017] FCCA 1515
Decision Date: 21 July 2017

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Australian Information Commissioner (IC). The IC's delegate had decided not to undertake or continue an Information Commissioner review on the basis that the applicant's review application was lacking in substance, pursuant to sub-section 54W(a)(i) of the *Freedom of Information Act 1982* (Cth). The applicant sought an order for review under section 11 of the *Administrative Decisions (Judicial Review) Act 1977* (Cth) and an extension of time to bring the substantive application.

The primary legal issue before the Court was whether the IC's delegate had erred in finding that the applicant's application for review lacked substance, and consequently, whether the applicant had sufficient merits for reinstatement of his application for review. This involved considering whether the delegate's satisfaction that the application was lacking in substance was reasonably open on the material before her, and whether there were reasonable grounds for the applicant's claim that would justify an extension of time under the *Administrative Decisions (Judicial Review) Act 1977* (Cth).

Judge Smith reasoned that the delegate's conclusion that the application lacked substance was open to her. The delegate had explained that the relevant departmental file was destroyed in 2003, and the applicant's submissions did not provide cause to consider otherwise. The Court noted that the applicant had been given multiple opportunities to address the issues, but his submissions did not offer evidence of corruption or forgery, nor did they suggest such evidence might be forthcoming. The Court found that the applicant's assertion that the documents had not been destroyed, and that the document indicating their destruction was forged, formed the basis of his application, and it was open to the delegate to be satisfied that this lacked substance. Consequently, the Court concluded there was no reasonable prospect of the applicant succeeding in his application, and it would be futile to set aside the orders made in his absence.

The application for reinstatement was dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The decision the subject of these proceedings was made by the IC pursuant to sub-s.54W(a)(i) of the FOI Act, in particular because the delegate was satisfied that the application was lacking in substance. Section 54W provides:Decision to review—discretion not to reviewThe Information Commissioner may decide not to undertake an IC review, or not to continue to undertake an IC review, if:(a) the Information Commissioner is satisfied of any of the following:(i) the IC review application is frivolous, vexatious, misconceived, lacking in substance or not made in good faith;… In the delegate’s letter dated 14 February 2017 to the applicant, the delegate explained how she reached that state of satisfaction. In doing so, the delegate referred to the correspondence between the OAIC and the applicant, including the various submissions made by the applicant and explained that “the evidence indicates that document 1, which is Departmental file 2001/004352, was destroyed in 2003 and [the applicant’s] submissions do not give me cause to consider otherwise.” Bearing in mind that I am not determining this matter on a final basis, I conclude that there is no reasonable prospect of the applicant succeeding in his application. That is for the following reasons:a)the applicant was given a number of opportunities to address the issues in his application including the possibility that the IC would decide not to continue the review;b)the applicant’s submissions were expressly referred to in the delegate’s letter to the applicant in which her decision was explained;c)there is no evidence at all to support the continued assertion that there was corruption or forgery in the Department and nothing to suggest that any such evidence might be forthcoming;d)more importantly, the conclusion that the relevant documents had been destroyed, was open to the delegate on the basis of the information before her; ande)as the application was based on the assertion that the documents had not been destroyed (and that the document saying that they had been was forged) it was open to the delegate to be satisfied that the application to the IC lacked substance. Neither the grounds in the application nor anything in the material before the Court raise any reasonable argument for the relief claimed. It is unlikely in those circumstances that an order would be made under s 11 of the ADJR Act extending time for bringing the substantive application and even if it were, the substantive proceedings would be most likely to fail. For that reason, although there was a reasonable excuse for the applicant’s failure to attend at the first court date, I consider that it would be futile to set aside the orders made in the applicant’s absence and so conclude that the application should be dismissed. There is no reason why the applicant should not pay the costs of the application. The application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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