Radicic v Australian Postal Corp

[1999] FCA 574

FEDERAL COURT OF AUSTRALIA

Radicic v Australian Postal Corp [1999] FCA 574

ADMINISTRATIVE LAW – appeal under s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) - no question of principle

Administrative Appeals Tribunal Act 1975 (Cth) s 44(1)
Freedom of Information Act 1982 (Cth) ss 24(1)(a), 24(2)(a), 24A
Federal Court Rules, O 53 r 3(2)

ANTHONY MARK RADICIC v AUSTRALIAN POSTAL CORPORATION
NG 867 of 1998

BRANSON J
SYDNEY
14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 867 of 1998

BETWEEN:	ANTHONY MARK RADICIC Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	14 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.
The applicant is to pay costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 867 of 1998

BETWEEN:	ANTHONY MARK RADICIC Applicant
AND:	AUSTRALIAN POSTAL CORPORATION Respondent

JUDGE:	BRANSON J
DATE:	14 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

1. This is a purported “appeal” under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). Such an appeal must be an appeal on a question of law. The Federal Court does not sit to rehear matters heard and determined by the Administrative Appeal Tribunal (“the AAT”) or to reconsider the merits of administrative decisions made within government agencies.

2. Section 44(2A) of the AAT Act requires that an appeal to the Federal Court under s 44(1) be instituted “in such a manner as may be prescribed by rules of court made under the Federal Court of Australia Act 1976”.  Orders 53 r 3(2) of the Federal Court Rules requires that a notice of appeal from the decision of the AAT state the questions of law to be raised on the appeal, the orders sought, and briefly, but specifically, the grounds relied upon in support of the appeal.  The present notice of appeal not only fails to comply with the requirements of    O 53 r 3(2), it is, in my view, in part scandalous and vexatious.  It may be noted that, although the notice of appeal refers on occasions to “my client”, it has plainly been drawn, as other parts of the document make clear, by the applicant himself.

3. The background to the applicant's application to the AAT is a request made by him to the respondent seeking access to two money orders allegedly purchased by him during 1990.  One of the money orders, the applicant alleges, was issued between 15 May 1990 and 12 June 1990 in an amount between $354.00 and $364.00 and was payable to the Road Transport Authority.  The other is said to have been issued between 21 August 1990 and 19 September 1990 in an amount between $114.00 and $144.00 and payable to the New South Wales Police Department at Parramatta.  The significance of the money orders is apparently to allow the applicant to meet allegations that he has failed to pay certain fines and should not lose or have suspended his driving licence.

4. It is not disputed that the respondent maintains its money order records on the following basis:

   “(a)The hard copy of a money order which is issued and payment made is destroyed after two years of issue.

   (b)Money orders which have been issued and payment made are retained on microfiche in the Australian Money Order Centre.

   (c)Each microfiche set contains approximately three million money order details which is approximately three months worth of money orders.

   (d)The money orders are recorded on microfiche in numerical order according to the original number of the money order.

   (e)The microfiche record is not an image of the actual money order.  It contains information which includes money order number, the amount, the date and Post Office of issue and the date and Post Office of payment.

   (f)No records are available to identify which series of money orders was being issued by any particular Post Office at a particular period after two years of issue.

   (g)Records of money orders which have not been presented for payment are maintained in a separate system.  These records are kept in numerical order according to the original number of the money order.”

5. The applicant has not provided the money order numbers for the money orders that he is seeking to trace as he has no record of the numbers.

6. The respondent failed to provide the applicant with access to documents concerning the money orders allegedly purchased by him on the ground that the work involved in processing the request, the numbers of the money orders not having been provided to it would substantially and unreasonably divert the resources of the respondent from its other operations (ss 24(1)(a) and 24(2)(a) of the Freedom of Information Act 1982 (Cth) (“the FOI Act”).

7. The applicant exercised the rights of internal review created by s 54 of the FOI Act. The decision made on internal review was not favourable to him. The respondent did, however, allow the applicant access to its microfiche records concerning money orders held at its Head Office in Cleveland Street, Strawberry Hills. The applicant was allowed access for 30 mins at a time between 2.00pm and 2.30pm on week days. The respondent further agreed that, subject to the needs of its own employees to have access to such records, the applicant could use the microfiche records for a further half hour a day.

8. The applicant sought review in the AAT of the decision of the respondent under s 55 of the FOI Act.

9. The review by the AAT was conducted by Mr M.D. Allen, a Senior Member of the AAT who on 27 July 1998 gave ex tempore reasons for affirming the decision of the respondent.  Mr Allen, after noting that the application before him arose out of a request by the applicant to be given access to certain money orders purchased by him said:

   “Unfortunately, the applicant has been unable to give numbers of those particular money orders. On the material which has been placed before me, it would appear that the hard copy of the money order which is issued and upon which payment is made is destroyed after two years of issue. Now, it would seem to me quite clearly then, that as to the actual money orders themselves, section 24A of the FOI Act applies, which says:

   “24AAn 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.”

10. The senior member expressed his satisfaction that the money orders themselves did not exist.  He noted that the applicant had been given access to the microfiche film records of the respondent for certain periods of time.  He then noted the practical difficulties of searching such substantial records and noted that the applicant asserted that he required ten hours a week to search such records, but that the respondent indicated that it could not spare their records for that period of time.  The learned senior member said that he understood the applicant's frustration, but went on to say:

    “However, there is nothing, as I see, under the Freedom of Information Act, which warrants this Tribunal requiring a government department to expend its funds in obtaining additional equipment in order to satisfy a Freedom of Information request.

    The applicant has made a suggestion that he take the documents out of the possession of the respondent and go to the State library, somewhere else where he can access the documents.  I would simply say that it is not an option for obvious reasons, namely a government department cannot be expected to surrender its documents to a person not a member of that department and neither can it be expected to make somebody available to accompany those documents.”

11. The learned senior member then considered the factual material before him and concluded that the decision of the respondent should be affirmed.

12. The questions of law said to be raised on this appeal appear at pages 86 to 89 of the documents before me.  The questions of law are not, in my view, questions that are in fact raised on this appeal, but I shall go through them one at a time.

13. The first such question of law is headed “Defamation”.  It reads:

    “These people are accusing my client of LYING and Attempting to Defraud the Government.  These people are destroying my client's reputation as a honest, hard working citizen.  And thus they are behaving in a Discriminatory Manner.”

14. It is not plain whether this ground is directed to the respondent or to the senior member of the Tribunal, or possibly to some other people.  Mr Radicic has interjected to tell me that it goes to the respondent and their solicitors.  Not only is this ground not a question of law, in my view, raised by the appeal, there is no material before me which supports it as a matter of fact.

15. The second question of law said to be raised by the appeal is headed “Common Law”.  It reads:

    “There is a Breach of Natural Justice and procedural protection to personal liberties.  Thus the preservation of my clients livilhood [sic] and reputation has been infringed.

    Natural Justice must prevail vindicating the private right to protection of character and prevention to the damage of personal freedom.

    These people have become CRIMINALLY NEGLIGENT.  They are involved in a Conspiracy to Defeat Justice and deny my client his most Natural and basic rights.”

16. None of the actual material before me supports these allegations, and in any event, the matter is not a question of law which, as far as I can see, is raised on the appeal having regard to the reasons of the AAT.

17. The third question of law identified on the notice of appeal is headed “Freedom of Movement” and reads in part:

    “A licence is essential, to be free to move around, free to go wherever a person desires.  Public Transport once outside the city limits is very restrictive.  There is NO quality of life, without a licence.”

18. The ground goes on to refer to the necessity of a licence to look for work and the necessity to hold a licence for reasons of identification. Again, these issues are not in any way raised on this appeal, which is an appeal against the decision of the respondent made under the FOI Act.

19. The fourth question of law said to arise is, “Common Law (CRIMINAL) Conspiracy”, and reads:

    “These people have been involved in a conspiracy to obstruct and prevent my client from obtaining justice.  Thus, they are Attempting to PERVERT JUSTICE.  They are defeating my client's BASIC RIGHTS.”

20. There is a reference to the Roads and Traffic Authority, in particular.  This ground, I think, adds little to matters already raised and to which I've already referred.  I say again, there is no evidence at all before me of any conspiracy and the issue does not arise in any event, having regard to the reasons of the AAT.

21. The fifth question of law said to arise is headed “Constitutional Law”, and reads:

    “…[o]ur personal liberty should be protected at all costs…we are drawing Reference to the AUSTRALIAN COURTS ACT 1828, (Imp) Implying that all British laws are applicable to AUSTRALIA and the ENGLISH BILL OF RIGHTS as well.”

22. I am unable to see in any way how this issue can be relevant to review by the AAT of the decision made by the respondent under the FOI Act.

23. The sixth question of law said to arise is headed “Access to Information”, and reads:

    “Requesting all documents, there is no limit to the amount of information that may be requested.  And shall be assisted by the agency so that the requestor can do all they can in locating the document or documents.”

24. No issue is taken by the respondent to the first part of this statement, that is, that there is no limit to the amount of information that may be requested under the FOI Act. However, s 24 of the FOI Act indicates that there are some limits to the trouble that a department or agency need go to in searching for documents. The AAT considered those matters and there is no basis in law which I can identify to suggest that its decision was not open to it. No ground, has been identified upon which this Court could interfere with this aspect of the AAT’s decision.

25. The seventh issue of law said to arise is headed “Document”, and reads:

    “MICROFISCHE [sic] is technically a DOCUMENT.  It is technically a negative, therefore a FILM.  Any data that is recorded in such a manner that the documents can subsequently be retrieved (with the proper equipment).”

26. The respondent has not suggested that a microfische is not a document for the purposes of the FOI Act. It is not in issue that had the microfiche records been conveniently able to be searched to provide the information that the applicant requests, such information would have been provided to him.

27. The eighth question of law is headed “Documentary Evidence” and reads:

    “I request that all of the relevant MICROFISCHE [sic] be submitted as part of the DOCUMENTARY EVIDENCE ACT.  These documents can prove that an injustice has occurred.”

28. The AAT dealt with the request by the respondent to be given the microfiche records of the respondent and there is no basis upon which I am able to find that its finding was not open to it. In any event, it seems to me that that issue was not one that arose before the AAT on the application made to it under the FOI Act. The FOI Act is concerned with the provision of access to documents and does not, by its provisions, require the handing over of large portions of the records of a Government agency to allow an individual to search them for himself or herself.

29. The ninth question of law is headed “Abuse of Process”, and reads:

    “It would be Malicious behaviour and an unjustifiable breach of Legal process to deny a person his CIVIL LIBERTIES.  Thus, they are violating TORTS which are co lateral to the ABUSE OF PROCESS.  Public Interests must be protected at all costs.”

30. I am not certain that I understand precisely what is intended to be raised by this ground, but the extent to which a citizen has an entitlement to access to records of the kind sought by the applicant here is delineated in the FOI Act. The AAT considered the rights of the applicant under that Act. I am not satisfied that any error of law was made by it in its consideration.

31. The orders sought by the applicant, on the notice of appeal, read as follows:

    “I merely want AUSTRALIA POST to allow me to have ACCESS to the microfische [sic] reader for 10 HOURS PER WEEK or 35 HOURS PER WEEK, Whichever may be deemed more appropriate, For a period of 5 to 6 weeks OR fortnights (ie possibly up to 10 or 12 weeks).”

32. In my view, the applicant has not shown any reason to disturb the finding of the AAT. For this reason no issue arises of substituting fresh orders in lieu of the orders made by the AAT. However, again I note that the relief sought by the applicant is not relief for which the FOI Act makes provision.

33. The application is dismissed.  The applicant is to pay the respondent's costs of the application.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Associate:

Dated:             14 April 1999

The Applicant appeared in person
Counsel for the Respondent:	Mr G. Johnson
Solicitor for the Respondent:	Brian Muir & Co
Date of Hearing:	14 April 1999
Date of Judgment:	14 April 1999