SANDRA WOLFE and TELSTRA CORPORATION LIMITED - [2009] AATA 767

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 767
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200100532

GENERAL ADMINISTRATIVE DIVISION )

Re SANDRA WOLFE

Applicant

And

TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date7 October 2009
PlaceBrisbane

Decision
The Tribunal:

(a) extends the time for the making of the application to 19 June 2001;

(b) dismisses the application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth).

.........Signed..........
Deputy President

CATCHWORDS
PRACTICE & PROCEDURE – eight years elapsed since application made – application made outside time – extension of time not opposed by respondent – earlier direction that matter stayed until proceedings in other jurisdiction completed – no step taken by applicant for a period in excess of five years – inference drawn that applicant lost interest in the proceedings – earlier attitude of non-cooperation – prejudice to respondent’s ability to evidence claims for exemption – no credible or reasonable explanation for failure to proceed – extension of time granted – matter dismissed for failure to proceed within a reasonable time.
Administrative Appeals Tribunal Act 1975 (Cth) s42A(5)
AAT Case 4878 (1989) 20 ATR 3251
Beard v Telstra Corporation Limited (1999) 57 ALD 376
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Guse v Comcare (1997) 25 AAR 477; 49 ALD 288
Katterns v Comcare (2002) 36 AAR 277
O’Loughlin & Secretary, Department of Families, Community Service & Indigenous Affairs & anor [2007] AATA 1633
Re Booker and Comcare [2009] AATA 281
Re Bragge & Repatriation Commission (1986) 10 ALN N136
Re Gayed & Australian Postal Corporation [1998] AATA 423
Re Greening & Repatriation Commission (1998) 52 ALD 110
REASONS FOR DECISION

7 October 2009 Deputy President P E Hack SC

In September 2000 the applicant, Ms Sandra Wolfe, made an application to the respondent, Telstra Corporation Limited, for access to certain documents pursuant to the Freedom of Information Act 1982 (Cth). That application was refused on 3 November 2000.
On 30 November 2000 Ms Wolfe made a complaint to the Ombudsman about Telstra’s decision. Additionally, on 1 December 2000, she applied to Telstra for internal review of the original decision. That application was partly successful and on 22 December 2000 certain documents were released however access was refused to a number of documents.
By letter dated 2 May 2001 the Ombudsman informed Ms Wolfe that no further action would be taken on her complaint. Ms Wolfe lodged the present application in the Tribunal on 19 June 2001 by which she sought review of Telstra’s decision of 22 December 2000. In circumstances that I will explain below that application has not yet been determined despite more than eight years having elapsed.
I am not presently concerned to determine the merits of the application. I am, instead, concerned to deal with Telstra’s application to dismiss the application summarily. Two bases for that application are advanced by Mr Batskos, the solicitor for Telstra.
First, it is said that the Tribunal has no jurisdiction to determine the application made by Ms Wolfe because it was made outside the time limited by the Freedom of Information Act. Telstra had not earlier taken that point. The point is good but is capable of being cured by an application to extend time within which to make the application. Mr Pickard, the solicitor for Ms Wolfe, had instructions to make an application to extend time if I regarded it as necessary and Mr Batskos accepted that if such an application was made he would not oppose it.
It is enough to say that in my view an extension of time is necessary and that it ought be granted.
The real point of Telstra’s application is its contention that Ms Wolfe has failed to prosecute her application with the consequence, it is said, that it ought to be dismissed pursuant to s 42A(5) of the Administrative Appeals Tribunal Act 1975 (Cth). That subsection provides:
“(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.”
Telstra contends that each of paragraphs (a) and (b) of the subsection is satisfied. It is necessary to detail the procedural history in order to understand the contentions advanced.
Following the lodging of the application a telephone conference was held with Ms Wolfe, Mr Batskos and a Tribunal Conference Registrar. It was agreed that Telstra would provide a list of documents in dispute and address certain issues that had been raised by Ms Wolfe. There was an apparent agreement that Ms Wolfe would notify the Tribunal and Telstra which of the listed documents she sought access to and which she no longer sought access to. Notification was required within 14 days of receipt of the list. Ms Wolfe did not do so. Instead she contacted Mr Batskos on 20 August 2001 and informed him that she would not participate in future telephone conferences. A telephone conference scheduled for 18 September 2001 did not go ahead.
There were further attempts to schedule conferences over the ensuing months. It seems likely that Ms Wolfe was unwell during this period and that there were valid reasons why she was unable to attend the various conferences scheduled during this time.
In the meantime Ms Wolfe commenced proceedings against Telstra in the Supreme Court of Victoria. In early March 2001 Telstra sough to have Ms Wolfe agree that the proceedings in the Tribunal be adjourned until the determination of the Supreme Court proceedings as, in the view of Telstra, there was likely to be a considerable overlap between the documents subject of the application in the Tribunal and those discoverable in the Supreme Court proceedings. Ms Wolfe did not agree to that proposal.
The matter was the subject of a hearing in the Tribunal on 21 May 2002. At the conclusion of that hearing the Tribunal directed “that the hearing of the application for review in this matter be stayed until the conclusion of the related Supreme Court proceedings in Victoria”.
It appears that between July and November 2002 Ms Wolfe was ill and receiving medical treatment.
In April 2003 a Tribunal staff member made contact with Ms Wolfe to ascertain the position with the Supreme Court proceedings. The file note records:
”Will not tell Tribunal what the status of the Supreme Court matter is. … I told her that Tribunal will not take any further action on the file until she tells us that Supreme Ct matter finalised.”
The Supreme Court proceedings were dismissed on 14 September 2004 when an order was made by a Master of the Court. Despite that order it appears to me that the proceedings had come to an end on 30 October 2003. The order of 14 September 2004 recites the terms of an earlier order made by a Master on 9 October 2003 that provided that “if the Plaintiff [Ms Wolfe] fails to file and serve a further amended statement of claim by 30 October 2003 the proceeding is dismissed without right of reinstatement”.
Neither Ms Wolfe nor Telstra informed the Tribunal of the conclusion of the Supreme Court proceedings. Earlier this year the Tribunal wrote to the parties regarding the status of the proceedings. That correspondence led to the present application by Telstra.
Telstra’s reliance upon paragraph (b) of s 42A(5) of the Administrative Appeals Tribunal Act may be readily disposed of. That paragraph operates where there has been a failure “to comply with a direction by the Tribunal”. So far as I can tell no direction was made at the conference on 7 August 2001. The Conference Report simply notes the steps that the parties had agreed to take. Thus, any failure to comply was not a failure to comply with a direction by the Tribunal although the approach of Ms Wolfe to what had been agreed may be considered when considering the other basis of Telstra’s application, paragraph (a) of s 42A(5) of the Administrative Appeals Tribunal Act.
The parties are agreed about the legal principles that guide the exercise of the discretion to dismiss for want of prosecution. Mr Batskos helpfully summarised them in this way:
(a)the power to dismiss for failure to proceed is a valuable discretionary power that must be exercised by reference to the circumstances that exist at the time when the decision regarding dismissal is made[1];
(b)the power ought be exercised sparingly and as “discretion of last resort” and after the parties have been given an opportunity to be heard[2];
(c)the Tribunal must be satisfied that at the time of the decision to dismiss an application a reasonable time has elapsed and there has been a failure of the applicant to prosecute the application[3];
(d)the power to dismissed may be exercised where the Tribunal is satisfied that the applicant, through “casual disregard”, was not pursuing the application[4]. A similar approach has been adopted in refusing an adjournment obviated by the applicant’s “indifference” resulting in the dismissal of an application[5];
(e)a failure to perform, within a reasonable time, steps that are crucial to the prosecution of an application will tend towards indication of a failure to prosecute. An event in a proceeding which tests an applicant’s preparedness to proceed, and is not acted on, is relevant. Failing to take action despite possessing information relevant to the application enables an inference to be drawn that the applicant failed to proceed within a reasonable time[6];
(f)the reasonableness or otherwise of any explanation or excuse proffered by an applicant is relevant. The failure to provide an adequate explanation is relevant[7];
(g)prejudice to the respondent arising from the delay is relevant[8].
[1] Guse v Comcare (1997) 25 AAR 477; 49 ALD 288.
[2] Guse (supra); Re Greening & Repatriation Commission (1998) 52 ALD 110; Katterns v Comcare (2002) 36 AAR 277.
[3] Beard v Telstra Corporation Limited (1999) 57 ALD 376
[4] Re Bragge & Repatriation Commission (1986) 10 ALN N136
[5] AAT Case 4878 (1989) 20 ATR 3251
[6] Re Greening (supra); Re Booker and Comcare [2009] AATA 281
[7] O’Loughlin & Secretary, Department of Families, Community Service & Indigenous Affairs & anor [2007] AATA 1633
[8] Re Gayed & Australian Postal Corporation [1998] AATA 423.
Having regard to the submissions made on behalf of Telstra its application needs to be considered by reference to three distinct periods – the period between January 2001 (when an application ought to have been lodged) and June 2001 (when it was lodged), the period between lodgement and the order staying the proceedings and, finally, the period from the dismissal of the Supreme Court proceedings to date.
I do not regard the first period as being at all relevant. Ms Wolfe’s application was lodged late however she was pursuing an alternate remedy that she considered (mistakenly) precluded her from lodging an application in the Tribunal. That her mistake was reasonable is amply demonstrated by Telstra’s late reliance upon the point from which I infer that its’ experienced solicitor was acting under a similar misapprehension.
Equally, I am not concerned with the delay per se during the second period identified above. It is apparent that Ms Wolfe was in poor health during part, at least, of the period. What seems to me to be of some significance during this period was Ms Wolfe’s refusal to cooperate with the Tribunal and Telstra to identify the issues in dispute as had been agreed at the 7 August 2001 conference. Moreover her refusal to participate in further telephone conferences was at best high-handed. There is no suggestion that ill-health had necessitated that approach.
What seems to me to be of critical importance is Ms Wolfe’s inaction between November 2003, once the Supreme Court proceedings had been dismissed, and the present. There is no sworn evidence from Ms Wolfe about the delay during this period however the submissions made on her behalf suggest that she “had no understanding that the proceedings were stayed” and that “she did not receive a notice of the orders or reasons from the Tribunal”. In light of these statements the Tribunal’s file was provided to Mr Pickard during the course of the hearing (and the matter stood down) so that he could obtain instructions from Ms Wolfe on the Tribunal’s correspondence to her of 24 May 2002, apparently enclosing a sealed copy of the direction made on 21 May 2002, and of 5 July 2002, apparently enclosing a copy of the reasons for decision of Member Rinaudo[9]. No evidence was thereafter sought to be led to support the assertions in the written submissions or to controvert the inference open from the Tribunal’s file that the documents were sent to Ms Wolfe as indicated. Moreover the transcript of the earlier hearing shows that following the making of the direction staying the proceedings Member Rinaudo said:
“Ms Wolfe, that does not mean that your case has been struck out. It simply means that you will pursue your case in Victoria until the finalisation of that proceeding and then you may pursue the case at the Administrative Appeals Tribunal.”
[9] Additionally, attention was drawn to the Tribunal’s file note set out in paragraph 14 above.
In these circumstances I propose to proceed on the basis that, contrary to the written submissions, Ms Wolfe was made aware of the terms of the direction and its effect and that copies of the direction and the reasons were provided in writing to her.
The written submissions further contend that Ms Wolfe was of the view that “her application in the Tribunal had been brought to an end”. In the absence of any evidence to support that assertion and in light of what was explicitly said to Ms Wolfe at the conclusion of the hearing I do not accept this assertion.
There is, then, no real explanation why nothing has been done to progress the matter in the years following the dismissal of the Supreme Court proceedings. The plain inference is that Ms Wolfe lost interest in the proceedings in the Tribunal. Her indifference to the proceedings has spanned a period in excess of five years and seemingly would have continued had the Tribunal not written to the parties earlier this year. Ms Wolfe’s earlier attitude of non-cooperation and her subsequent disinterest lead me to the conclusion I am unable to have any confidence that she would or could now prosecute the proceedings with diligence were the proceedings allowed to continue.
Telstra relies, as well, on the existence of prejudice to it were the matter to be allowed to continue. There was no evidence identifying lost documents or missing witnesses or the like but Mr Batskos relied upon the type of prejudice identified by McHugh J in the following passage from Brisbane South Regional Health Authority v Taylor[10]:
“Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo …, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.”
[10] (1996) 186 CLR 541, 551
By virtue of s 61 of the Freedom of Information Act Telstra would have the onus of establishing that its decisions refusing Ms Wolfe access were correct. The documents that were identified in Telstra’s decision were created during 1996 and 1997. Exemptions were claimed by Telstra on the basis of “internal working documents” (s 36, Freedom of Information Act) and legal professional privilege (s 42, Freedom of Information Act). I readily infer that the additional delay in excess of five years is likely to prejudice Telstra’s ability to evidence its claims for exemption, particularly that under s 36 of the Freedom of Information Act.
Telstra also identified as a prejudice to it the fact that it is no longer bound by the Freedom of Information Act and that it no longer maintains a Freedom of Information section. I do not regard that as amounting to a prejudice arising from the additional delay.
I am satisfied that the applicant has failed, within a reasonable time, to proceed with her application. That conclusion is amply supported by the delay from November 2003 onwards. It is not necessary to determine what a reasonable time might have been; it is enough to say that absent some cogent explanation it was in the order of weeks rather than the years during which nothing has been done to proceed with the application. In circumstances where the applicant has effectively done nothing to progress her application for a period in excess of five years, where she has provided no credible or reasonable explanation for that failure, where I infer that she had lost interest in the proceedings and where I am satisfied that it is likely that Telstra will be prejudiced by the additional delay I am satisfied that the present case is one where it is appropriate to exercise the discretion in s 42A(5) of the Administrative Appeals Tribunal Act to dismiss the application by Ms Wolfe without proceeding to review the decision.
I will then extend the time for the making of the application to 19 June 2001 in order to regularise the process but would dismiss the application pursuant to s 42A(5) of the Administrative Appeals Tribunal Act.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ............Signed......................................................
  Associate
Date of Hearing  3 September 2009
Date of Decision  7 October 2009
Solicitors for the applicant        Greenhalgh Pickard
Solicitors for the respondent     FOI Solutions