Re Francis and Department of Defence
[2010] AATA 780
•13 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 780
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0317
GENERAL ADMINISTRATION DIVISION ) Re RONALD FRANCIS Applicant
And
DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date13 October 2010
PlaceAdelaide
Decision The tribunal refuses the application to dismiss the within proceedings pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
FREEDOM OF INFORMATION – application for amendment of personal records – further amendments and annotations partially agreed after hearing of application to dismiss proceedings as frivolous or vexatious – subsequent agreement as to terms of consent decision.
PRACTICE AND PROCEDURE – application for amendment of personal records – earlier proceedings in AAT re application to amend same documents – application to dismiss proceedings as frivolous or vexatious – written amendments and annotations partially agreed after hearing of dismissal application – dismissal application refused.
Administrative Appeals Tribunal Act 1975 (Cth), ss 33 and 42B
Freedom of Information Act 1982 (Cth), ss 48, 50 and 55
Francis v Department of Defence [2005] FCA 100
Re Filsell and Comcare (2009) 109 ALD 198
Re Francis and Department of Defence [2004] AATA 33
Re Francis and Department of Defence [2009] AATA 549
Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366
REASONS FOR DECISION
13 October 2010 Deputy President D G Jarvis 1. By an email dated 22 December 2009, the applicant, Ronald William Francis, applied pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act), to amend certain records on the grounds that they were incomplete, incorrect, out of date and misleading. The documents in question are as follows:
(a)AF Med 1 : Medical Examination Record dated 17 March 1972;
(b)AF Med 1 : Medical Examination Record dated 14 July 1972; and
(c)AM 146Z : Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy, dated 14 July 1972.
2. By letter dated 22 January 2010, the Acting Director, Freedom of Information, advised the applicant that the amendments sought were refused, on the grounds that the documents were the subject of an earlier decision by Senior Member Dunne of this tribunal to the effect that the information in the documents was not incomplete, incorrect, out of date or misleading (see Re Francis and Department of Defence [2009] AATA 549). The Acting Director also said that the respondent had made certain annotations to the documents consistently with Senior Member Dunne’s decision, and the applicant had not presented any evidence to suggest that a different decision should now be made.
3. On 25 January 2010 the applicant lodged an application with this tribunal asserting that he had not received a reply to his application within 30 days of lodging his request for amendment. He relied upon s 56(1A) of the FOI Act, which provides in effect that if notice of the relevant decision has not been received by an applicant within 30 days since the date of receipt of the application for the amendment, the respondent is taken, for the purpose of enabling an application for review to be made to this tribunal, to have made, on the last day of that period, a decision refusing to amend or annotate the relevant record.
4. I understand that the concern that prompted Mr Francis’s request under the FOI Act was that the first two records do not refer to a back injury that he sustained in the course of his service, notwithstanding that he was hospitalised and there was radiological evidence of trauma affecting the L1, L4 and L5 vertebrae. In addition, he claims that he developed a psychological condition during his service, and that his discharge should have recorded that he was unfit for naval service.
5. I have previously heard an earlier matter, namely matter number 2009/0278, in which the respondent was the Department of Veterans’ Affairs (DVA). That matter arose from the refusal of an earlier application by Mr Francis under the FOI Act to amend certain other documents. That matter was part-heard, but the parties arrived at an agreement that the documents there in issue should be annotated in the following terms:
“On 26 January 1968 Ronald William Francis injured his back in a fall while serving on HMAS Sydney. The diagnosis was a compressed fracture of the L4-5 vertebrae.
He made a claim to have his back condition accepted. Notwithstanding that the condition as diagnosed was L4-5 the Delegate accepted only L1 under the Commonwealth Employees’ Compensation Act 1930. He [Mr Francis] subsequently claimed benefits under the Veterans’ Entitlements Act 1986 (VEA) and on 29 September 1993 it was decided by the Repatriation Commission that he had sustained fractures of L1, L4 and L5 in the course of his operational service.
Further, in addition to his fractured vertebrae, his Naval medical records also clearly indicated that he had post traumatic depression arising from his Naval service. He also made a claim for post traumatic stress disorder under the VEA and on 28 January 1993 the Veterans’ Review Board decided that that condition also arose in the course of his operational service.”
Applications by respondent to dismiss the within proceedings
6. The respondent applied to dismiss Mr Francis’s application in the present proceedings on the grounds that he had not first sought an internal review of the Acting Director’s decision, as required by s 55(2) of the FOI Act, and so this tribunal did not have jurisdiction to determine the application for review. The respondent submitted in the alternative that the application should be dismissed under s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the grounds that it was frivolous or vexatious.
7. The within proceedings were eventually resolved by agreement, as explained in detail below, and I will issue a consent decision to give effect to the parties’ agreement. However, in view of the earlier history of proceedings arising out of the documents referred to in Mr Francis’s application, I thought it appropriate to formally record and determine the respondent’s dismissal application, and the reasons for my determination.
8. The respondent’s dismissal applications were listed for hearing earlier this year. I decided that I was not satisfied that the tribunal lacked jurisdiction, because the decision notice was emailed to him, and the applicant’s email address was not his designated address for the purposes of communications with him. It was therefore not clear that the applicant would have received the requisite advice of the Acting Director’s decision within the 30-day period referred to in s 56(1A) of the FOI Act. I note that the respondent subsequently accepted this position, and that the tribunal has jurisdiction in the present proceedings.
9. In addition, I did not consider it appropriate to dismiss the proceedings under s 42B of the AAT Act, because the applicant produced at the hearing earlier this year a further copy of the AF Med 1 form dated 17/3/72 (being the first of the subject medical examination records) which he had obtained from the Department of Veterans’ Affairs (the DVA). This included the final paragraph of the record, which had apparently been completed by the Confirming Authority. The final paragraph, as so completed, comprised a material hand-written addition to the document reading, “Refer for orthopaedic opinion re fractured lumbar vertebrae,” and below that, what appears to have been added separately in a different handwriting, “Unfit S/M [submarine] – emotional instability.” When Mr Francis produced that document, I suggested that the respondent should review its position in the light of the hand-written additions to the document.
10. After that, Mr Francis requested the following amendments to the documents referred to in paragraph 1 above (the “subject documents”):
(a)as to the AF Med 1 dated 17/3/72, first that it be annotated in terms of the above annotation; second, that boxes 48 and 49 on the form, relating to emotional stability and mental capacity, be ticked as designating “abnormal”, instead of “N/E” (meaning “not examined”); thirdly, that in box 42 relating to the spine, the tick designating “normal” should be removed to the column headed “abnormal”; fourthly, that box 58 should be supplemented to refer to fractures of the first, fourth and fifth lumbar vertebrae and emotional instability, depression, anxiety and anxiety neurosis; and fifthly, that boxes 61 and 62 relating to his medical category be amended;
(b)as to the AF Med 1 dated 14/7/72, that this should be annotated and amended in the same manner as the first four amendments requested for AF Med 1 dated 17/3/72, and that box 61 should also be amended; and
(c)as to AM 146Z, first that it be annotated in accordance with the above annotations; and second, that it be amended to reflect, in boxes 7, 8 and 9, diagnosed symptoms of emotional instability, depression, anxiety and anxiety neurosis.
11. In a letter dated 28 April 2010, the respondent advised its position in relation to each of the issues referred to in the preceding paragraphs as follows.
(a)As to AF Med 1 form dated 17/3/72, the respondent agreed to make an annotation in the terms that I have set out in paragraph 5 above, but did not agree to the amendments to boxes 48, 49 or 42 requested by Mr Francis.
The respondent also advised that it had recorded that Mr Francis had furnished a “more complete” copy of this document, with box 66 filled in by the Confirming Authority, and further advised that it had obtained the original from the DVA, and had placed that original with Mr Francis’s medical file, and that the version without box 66 filled in would be annotated to refer to that original, more complete version.
(b)As to the AF Med 1 form dated 14/7/72, the respondent agreed to make the annotation that I have set out in paragraph 5 above, but did not agree to the requested amendments to the responses to boxes 48, 49 or 42.
(c)As to the AM 146Z form, the respondent agreed to the document being annotated with the above annotation that I have set out in paragraph 5 above, but did not agree to the requested amendment to boxes 7, 8 and 9. The respondent subsequently further agreed that the form be annotated as follows:
“In an application made to the Department of Defence on 22.12.2009 under the Freedom of Information Act, Mr Francis questioned whether the signature on this form was his signature, notwithstanding that as recorded in a decision of the Administrative Appeals Tribunal, [2009] AATA 549, he admitted in those proceedings that he had signed the original of this document.”
12. The proposals made by the respondent were not accepted by Mr Francis. On a strict analysis some of the further requested amendments might not be within the Tribunal’s jurisdiction in the within proceedings, but the respondent renewed its application to strike out the proceedings, and based its application on s 42B of the AAT Act. It was at this further hearing that the respondent agreed to the further annotation set out in paragraph 11(c) above.
Respondent’s contentions as to applicant’s requested amendments
13. Apart from conceding that the AF Med 1 form dated 17/3/72 was incomplete, and taking into account its willingness to annotate the documents in accordance with paragraph 5 above, counsel for the respondent, Mr Davidson, contended that the three subject documents are not otherwise incomplete, incorrect, out of date or misleading. The respondent’s position is as follows.
14. As to boxes 48 and 49 of the two AF Med 1 forms, Mr Davidson submitted that Mr Francis has not adduced, or suggested that he is in position to adduce, any evidence that the author of the forms, Dr Clarke, conducted an examination as to Mr Francis’s emotional stability or mental incapacity, and so there was no basis for the application to amend the “N/E” response.
15. As to box 42 of the two AF Med 1 forms, Mr Davidson submitted that the forms in effect record Dr Clarke’s opinion that Mr Francis’s spine was “normal”. He further submitted that the criterion “normal” was to be assessed by reference to the function of the spine, and that any underlying condition of the spine which did not affect function did not make the spine “abnormal” for the purposes of the examination or the record of it. Counsel referred to the decision of Senior Member Purcell in Re Francis and Department of Defence [2004] AATA 33. In that case, Mr Francis had applied to amend the second of the subject documents in these proceedings, namely the AF Med 1 form dated 14/7/72. He claimed in those proceedings that the response to box 42 should not have been “normal” because of his back condition. Senior Member Purcell said, at [34]:
“I am satisfied on the evidence that the question being asked of Dr Clarke was whether aspects of the body were normal, or abnormal, in terms of function; he was not being asked whether they were anatomically normal or abnormal. He formed an opinion that at the time of the examination these aspects of the body were “normal’; and in my view these opinions were not based on errors of fact. In relation to the back condition there was a radiological history in respect of the applicant’s spine, but in terms of what was occurring at the time of the examination there was evidence that he was working in his ordinary duties, and not regularly receiving treatment for the condition at that time. There was a sound basis, in my view, for Dr Clarke’s opinion, that from a functional point of view the applicant’s back was “normal”.”
16. Mr Davidson then referred to the judgment of Selway J who dismissed an appeal against the decision of Senior Member Purcell: see Francis v Department of Defence [2005] FCA 100. His Honour referred to the reference to “normal” in the context of the spine, and said at [11]:
“In relation to the note of ‘normal’ for the spine there is no information at all as to what facts the doctor took into account in reaching that opinion. The most that the applicant can show is that the opinion itself is wrong. In relation to the conclusion, ‘Category A subject to x-ray result’, again that is a matter of opinion and in the absence of some evidence of a mistake of fact there is nothing to show that it is other than an opinion. The applicant says it is an erroneous opinion. Much as that may be, it does not answer the requirements of showing a mistake of fact.”
17. As to the AF Med 1 form dated 14/7/1972, the respondent objected to this form being supplemented with the same addition as had been made to the AF Med 1 form dated 17/3/72, because the orthopaedic referral was not requested in July 1972, and to place that text in the July 1972 form would be misleading. The respondent further submitted that the finding of “unfit for submarines” would make no sense in the context of a discharge examination, and was not the finding of the Confirming Authority in July 1972.
18. Mr Davidson also relied upon the approach of Senior Member Dunne in Re Francis and Department of Defence (supra), at [48], where he said:
“The amendment regime under Pt V of the Act is not intended to be a re-examination of the decisions that have been taken in the past. The question that is being asked is whether the personal information in the documents in issue is a correct representation of what occurred at the time.”
I respectfully agree with this analysis, which is also relevant to Mr Francis’s further criticism that the relevant medical examinations were not carried out in accordance with relevant Departmental directions.
The applicant’s response, and further proposals
19. In response to the respondent’s contentions, Mr Francis referred to a number of historical documents evidencing his physical and psychological conditions, and also to the history of his injury and his subsequent experiences and treatment.
20. Following the hearing of the respondent’s renewed dismissal application, Mr Francis proposed certain further annotations to the records as follows:
(a)that the AF Med 1 form dated 14/7/72 be supplemented with the same additions that were made to AF Med 1 form dated 17/3/72 (see paragraph 8 above);
(b) that the AF Med 1 form dated 14/7/72 be annotated as follows:
“These medical conditions were present on the day of the medical examination on the 14th July 1972 and on the day of discharge 16th July 1972.”; and
(c)that both AF Med 1 forms be annotated as follows:
“These accepted factual medical diagnosis (sic) were present at the time of both medical examinations, namely the 17th March 1972 and the 14th July 1972 and the day of discharge on the 16th July 1972.”
21. The respondent advised that it was not prepared to agree to these further annotations, but said that it would agree to the following supplementary annotations:
(a)“The events giving rise to the injuries accepted by the Veterans’ Review Board occurred prior to 16 March 1972.”; or
(b)“Mr Francis contends that the document is incorrect or incomplete on the basis that these accepted factual medical diagnoses were present at the time of both medical examinations, namely the 17th March 1972 and the 14th July 1972 and the day of discharge on the 16th July 1972.”
The respondent submitted that the first alternative would make the same point as Mr Francis’s proposed annotation, but did not record a medical diagnosis in the absence of relevant evidence of such a diagnosis.
22. The respondent further indicated that it would agree to a further supplementary annotation on the AF Med 1 form dated 14/7/72 reading:
“note also AF Med 1 form of 17 March 1972.”
23. After the hearing of the renewed application to dismiss the proceedings under s42(B) of the AAT Act, and after considering the further communications between the parties, I decided to refuse the application, for the reasons referred to below.
Legislative Scheme
24. Section 48 of the FOI Act enables a person to apply to amend or annotate official documents containing personal information about that person if the documents are incomplete, incorrect, out of date or misleading. Section 48 provides as follows:
“48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.”
25. Section 50 empowers an agency or Minister to amend or annotate records. It provides relevantly as follows:
“50(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a)the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b)the information is incomplete, incorrect, out of date or misleading; and
(c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b)by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.”
26. Where the agency or Minister decides not to amend the document wholly or partly in accordance with an application made under s 48, the agency or Minister must annotate the document under s 51 of the FOI Act.
27. Section 55(1)(g) provides for applications to be made to this tribunal for review of a decision refusing to amend a record of personal information in accordance with an application made under s 48. This is subject to certain limitations under s 55(6), including where the decision would require, or have the effect of requiring, an amendment relating to a record of an opinion. Section 55(6) provides relevantly as follows:
“55(6)The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
…
(c)the amendment relates to a record of an opinion to which neither of the following applies;
(i)the opinion was based on a mistake of fact;
(ii)the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.”
Contentions made at renewed dismissal application
28. Mr Davidson acknowledged that as Mr Francis had produced the completed version of AF Med 1 form dated 17/3/72 it could not be said that there had been no legal basis for Mr Francis having instituted the present proceedings. However, he submitted that having regard to the concessions and proposals made by the respondent, the proceedings should now be struck out under s 42B of the AAT Act, because the proceedings have now become frivolous or vexatious. In support of this submission he relied on Re Williams and Australian Electoral Commission and the Greens (1995) 38 ALD 366.
29. He further submitted that the documents cannot be amended to the extent that they record an opinion (since neither of the exceptions to the proscription against amending records of opinions applies), and the other matters raised by Mr Francis did not render the documents incorrect or otherwise warrant any amendment.
30. Counsel formulated his submissions by reference to principles that are enunciated in Re Filsell and Comcare (2009) 109 ALD 198. I there said, at [33], that applications for dismissal under s 42B should be approached according to the following principles:
“(a)The word “frivolous” in combination with “vexatious” is a technical legal term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].
(b)The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare (2006) 93 ALD 147 at [24]; [2006] FCA 1829 at [24], per Madgwick J.
(c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparas (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Cmr. for Railways (NSW) (1964) 112 CLR 125 at 129 – 130; [1965] ALR 636 at 638; [1964] HCA 60.
(d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(e)Conversely, applications to dismiss under s 42B should not be made except in appropriate cases, since otherwise the parties will be put to additional expense, the tribunal’s time and resources will be wasted, and the tribunal’s ability to provide a mechanism of review that is fair, just, economical, informal and quick (as required by s 2A of the AAT Act) will be impeded.”
I then went on to refer to the differences in proceedings in this tribunal and proceedings in civil courts which underline the need for the tribunal to proceed cautiously when considering applications for dismissal under s 42B. I also explained that s 42B presupposes that the tribunal has jurisdiction, since otherwise the tribunal would not have power to take the steps contemplated by s 42B, which include in appropriate cases a direction that the applicant must not, without leave of the tribunal, make a subsequent application to the tribunal of a kind or kinds specified in the direction.
31. Mr Francis disputed that the proceedings were frivolous or vexatious, or that he had brought the proceedings to harass the respondent, and maintained his contentions in relation to the subject documents.
Consideration
Should the application be dismissed as frivolous or vexatious?
32. Under s 42B of the AAT Act, this tribunal has a discretion to dismiss an application if it is satisfied that the application is frivolous or vexatious.
33. In Williams (supra), the applicant sought review of a decision made by the Australian Electoral Commission to approve a change to the electoral register by entering a person as the registered officer of a political party. However, after the proceedings had been instituted, the applicant ceased to have an interest in the proceedings, because a different person was validly appointed as the registered officer of the party, and an election was not called during the period between the application to the tribunal for review and that valid appointment. The applicant’s interest (being to ensure that any nomination of candidates to represent the Greens in an election should be made by a person who was validly appointed to perform that function), therefore no longer applied, and the tribunal dismissed the proceedings pursuant to s 42B of the Act.
34. The tribunal (President Matthews J and Deputy Presidents Beaumont and Hill JJ) said, at [37]:
“… an applicant who genuinely holds a mistaken belief as to a state of facts which, if correct, would support the claim which is made in the proceedings, is ordinarily entitled to “a day in court”. … But where, as here, the significant factual matters are agreed between the parties, and the only issues in dispute relate to the legal consequences which follow, the genuineness of the applicant’s belief as to the legitimacy of his claim must bow before a finding that, as a matter of law, no legitimate purpose can be achieved by continuing with the proceeding.”
The tribunal found that on the facts of that case, while the proceedings were not instituted vexatiously, they had become vexatious, since the only interest of the applicant which could possibly have been affected by the disputed decision ceased to exist.
35. In the present matter, the AF Med 1 form dated 17/3/72 held by the respondent was incomplete, and so Mr Francis’s application to this tribunal, insofar as it relates to that document, could not be said to have lacked any legal basis. However, the respondent has now taken steps to which I referred above to retain the completed form on the medical file, and to annotate the incomplete copy, and these steps have now rendered that record complete and correct.
36. In support of the dismissal application, Mr Davidson, after referring to the steps already taken by the respondent to correct the record as far as the AF Med 1 form dated 17/3/72 was concerned, and after referring also to the earlier proceedings in the tribunal, submitted that Mr Francis had brought the present proceedings to harass the respondent. He pointed out that Mr Francis had had a copy of the AF Med 1 form dated 17/3/72 for some time before the first occasion when the dismissal applications were heard, but had only produced this copy on the day of that hearing.
37. It is regrettable that Mr Francis did not produce the completed copy earlier, because if he had done so, the respondent might not have made the application under s 42B, and it would also have assisted the tribunal to have been able to refer to the completed document. Mr Francis did not give any clear explanation as to why he did not produce a copy of the completed form earlier in the proceedings, but he was not cross-examined about this matter during the hearing of the dismissal application. I think it is understandable that he has requested the amendment of the records, particularly in view of the apparent confusion in some of the records as to whether the fractures were of the L1 vertebra or the L4 and L5 vertebrae. In addition, the later AF Med 1 form and the AM 146Z form, and at least some copies of the AF Med 1 form dated 17 March 1972, did not refer to the referral for an orthopaedic opinion or a psychiatric assessment. It is apparent from Mr Francis’ communications and submissions that he has very been concerned about these matters for many years. He has understandably been very persistent in his attempts to have the records corrected, and I am not satisfied that he brought the present application in order to harass the respondent.
38. As a result of the further communications between the parties to which I have referred above, further annotations have been proposed and were partially agreed between the parties. The further requested annotations affect not only the AF Med 1 form dated 17/3/72, but also the AF Med 1 form dated 14/7/72 and the AM 146Z form. Because not all of the annotations requested by Mr Francis had been agreed, I had to decide whether to accede to the respondent’s renewed application to dismiss the proceedings under s 42B following the implementation of the steps referred to in paragraph 11 above. Under s 42B of the AAT Act the tribunal’s only power is to dismiss the application. This seemed to me to be inappropriate, because the parties had agreed that certain annotations should be made, and the further communications between them (to which I have referred above) suggested that it might be possible to draft mutually acceptable further annotations that would accommodate the contentions of each party. In addition, if it transpired that this was not possible, I considered that I should determine the parties’ competing contentions in the usual way, in view of the long history of Mr Francis’s attempts to have the documents in question corrected, amended or annotated. I was mindful that the two AF Med 1 forms and the AM 146Z form, being the documents that are the subject of the within proceedings, were the three primary documents that were the subject of earlier proceedings before Senior Member Dunne, namely Re Francis and Department of Defence (supra). Further, the AF Med 1 form dated 14 July 1972 was the subject of a yet earlier application, determined by Senior Member Purcell, in Re Francis and Department of Defence (supra), and the appeal against her decision was dismissed by the Federal Court (Francis v Department of Defence (supra)).
39. I accordingly decided that I would refuse the renewed dismissal application, and I decided instead to formulate further suggested annotations in an attempt to resolve the substantive matters in issue between the parties, in a way that was consistent with the communications that had passed between the parties following the earlier hearings of the dismissal applications. I am pleased that both parties subsequently agreed to the annotations that I formulated. The parties have now lodged an agreement pursuant to s 34D of the AAT Act as to the terms of a consent decision for the respondent to make the agreed annotations, and the tribunal will issue a decision pursuant to that section to give effect to their agreement.
Decision
40. The tribunal refuses the application to dismiss the within proceedings pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the 40 preceding paragraphs are a true
copy of the reasons for the decision herein of Deputy President D G JarvisSigned: …. [Signed] ….
Associate
Date/s of Hearing 11 March 2010, 28 July 2010 and
13 September 2010
Date of Decision 13 October 2010
Applicant In person
Counsel for the Respondent Mr J Davidson
Solicitor for the Respondent Australian Government Solicitor
3
8
0