Simring and High Court of Australia

[2006] AATA 849

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 849

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2006/825

GENERAL ADMINISTRATIVE DIVISION		)
Re		Gene Simring

Applicant

And High Court of Australia

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date4 October 2006 

PlaceSydney

Decision The application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 as there is no reviewable decision.

..............................................

Professor GD Walker
  Deputy President 

CATCHWORDS

FREEDOM OF INFORMATION – jurisdiction – decision of High Court – FOI Act does not apply to court documents unless the documents relate to matters of an administrative nature – document created in Judges’ chambers – document of a judicial not administrative nature – no reviewable decision – application dismissed.

Freedom of Information Act 1982 ss 5, 11, 55

Judiciary Act 1903 ss 35 and 35A

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34

Gunter v Doogan [2003] FCA 667

Legal Aid Commission of Western Australia v Edwards and Others (1982) 42 ALR 154

Letts v Commonwealth and Others (1985) 8 FCR 585

Loughnan v Altman (1992) 39 FCR 90

Official Trustee in Bankruptcy v Nedlands Pty Ltd (In Liquidation) (2000) 99 FCR 555

O’Sullivan v Family Court of Australia (1997) 141 FLR 204

Smith Kline & French Laboratories (Australia) Ltd v The Commonwealth of Australia and Others (1991) 173 CLR 194

REASONS FOR DECISION

4 October 2006  Professor GD Walker, Deputy President

1.      A hearing was held to determine whether the tribunal has jurisdiction to review a decision by the Registrar of the High Court of Australia to refuse the applicant’s request for access under the Freedom of Information Act 1982 (“FoI Act”) to a document created in the course of dealing with the applicant’s special leave to appeal application No S437/2004. The applicant Mr Simring appeared in person by video link from Long Bay Correctional Centre. Mr Christopher Doogan, Chief Executive and Principal Registrar of the High Court of Australia, appeared in person.

2. The document in issue was not produced to the tribunal, the respondent taking the position that as the tribunal had no jurisdiction, the powers that it would normally have when reviewing a decision under the FoI Act did not arise. The only evidence produced was an affidavit sworn by Mr Doogan on 12 September 2006 which set out the history of the matter and the facts on which Mr Doogan relied in reaching his decision. Those matters were referred to in paragraphs 5 and 6 of his affidavit, which were read out at the hearing:

5.        The Application Book in relation to application No. S437/2004 was referred to a panel of Justices for consideration. As part of the judicial deliberative process the document in question was brought into existence within Chambers as part of that judicial deliberative process.

6.        From my own direct knowledge I can categorically state that the contents of the document do not relate to matters of an administrative nature.

3.      Following a trial in the District Court of New South Wales in January 2001, the applicant was convicted of a number of offences. After an unsuccessful appeal to the Court of Criminal Appeal, he applied on 1 March 2002 for special leave to appeal to the High Court of Australia (No S28/2002).  That application was refused on 5 November 2002.

4.      Believing that he had new evidence that showed his conviction to have been a miscarriage of justice, the applicant in March 2004 sought to appeal to the Court of Criminal Appeal a second time.  That attempt having failed, in May 2004 he sought special leave to appeal to the Court of Appeal.  That also was unsuccessful and on 4 November 2004 he applied for special leave to appeal to the High Court of Australia (No S437/2004).  The application was considered by a panel of Justices composed of different members of the Court from those who had considered his earlier application.  His second application for special leave was dismissed on 14 December 2005. 

5. On 15 March 2006 Mr Simring lodged a freedom of information request with the High Court seeking copies of all documents concerning himself and his application for special leave No S437/2004, except for the application book that he had filed and correspondence to and from him. The Marshal of the High Court supplied a number of documents under cover of a letter dated 29 May 2006, but declined to provide one document on the ground that it was exempt under s 36 of the FoI Act. By letter dated 13 June 2006, the applicant sought internal review of the marshal’s decision to refuse to provide him with a copy of that document. Then on 26 June 2006, the Principal Registrar, Mr Doogan, wrote to the applicant stating, inter alia, that quite apart from s 36, the document in question was of a judicial nature and therefore outside the scope of the FoI Act.

6. Mr Simring then applied to this tribunal for review of the decision to refuse him access to the document. On 25 July 2006, Mr Doogan wrote to the registrar of the tribunal submitting that the tribunal had no jurisdiction to entertain the application, giving his reasons for that submission and enclosing copies of a number of relevant authorities. His basic position was that, independently of s 36, s 5 prevented the Act from having any application to the document in question. Although the High Court is a prescribed authority and therefore an agency with obligations under s 11, the document was not of an administrative nature and therefore excluded by the proviso to s 5.

7. At the hearing, Mr Simring reviewed the respective objects of, and relevant powers under, the FoI Act and the AAT Act and then proceeded to argue that the phrase “relates to matters of an administrative nature” in the proviso meant only that it needed to have some relevance to those matters, or be concerned or connected to them. Even if the document could be argued to be of a judicial nature, if in some way it was connected to administrative matters, it was excluded from the proviso and was subject to disclosure. The document need not be exclusively administrative in order to be characterised as relating to matters of an administrative nature.

8.      It was apparent from the correspondence, Mr Simring submitted, that the document must relate to the administration of the case in the High Court, specifically whether the case were to proceed to a hearing on the merits or not.  It could not have anything to do with the Court’s deliberations over its reasons for judgment following a hearing, as their Honours’ decided that there would be no hearing.  The Court’s decision on the application for special leave itself gave no real reasons for decision, giving no indication that the grounds for appeal were considered.   Thus the decision on the special leave application was itself administrative. 

9.      The document in issue might not have been prepared by a member of the Court or a registrar, but by tipstaff or administrative assistants, he said.

10.     Mr Simring then proceeded to comment on the cases cited in Mr Doogan’s letter of 25 July 2006.  Loughnan v Altman (1992) 39 FCR 90 dealt with an unrevised transcript of ex tempore reasons for judgment given by a member of the Family Court.   As he was not seeking a draft of a judgment or ex tempore reasons, which could reasonably be regarded as being for the confidential use of the Justices, the Loughnan case was not in point.

11.     The same was true of Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34, which sought review of the conduct of the Deputy Registrar of the High Court in making a decision pursuant to the High Court Rules. The present case was not about the registrar’s actions but about the type of document to which access was sought.

12.     In Letts v Commonwealth and Others (1985) 8 FCR 585, Toohey J had to consider a decision by a Registrar of the High Court to seek a direction of a Justice pursuant to a High Court rule relating to abuse of process. His Honour held that it was not a decision of an administrative character, but of a judicial character. This case also was distinguishable because on the present facts the registrar was not applying a High Court rule. Similarly, while Official Trustee in Bankruptcy v Nedlands Pty Ltd (In Liquidation) (2000) 99 FCR 555 and Gunter v Doogan [2003] FCA 667 held that court registrars were engaged in judicial functions when making certain orders, they were distinguishable as Mr Simring was not challenging the registrar’s exercise of his functions but contending that certain documents were of an administrative nature.

13.     On the other hand, Legal Aid Commission of Western Australia v Edwards and Others (1982) 42 ALR 154 held that a deputy registrar refusing to accept a notice disputing a bill of costs and requesting its taxation was administrative in nature. The present case was analogous with Edwards, Mr Simring said.  Only the administrative part of his special leave application had been dealt with when special leave was refused.  The applicant stressed that his application to the tribunal deals with a document, not with a decision of a registrar.

14. Mr Doogan relied on the submissions contained in his letter of 25 July 2006 and referred also to the Report by the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978. The report made it clear that the initial intention had been that the courts should be entirely excluded from the operation of the FoI Act. The committee thought, however, that there were some documents of a clearly administrative character associated with the functioning of registries and the collection of statistics on a host of matters associated with judicial administration which should be opened up to public gaze. “These would include such matters as the number of sitting days, the number of cases determined, the number of cases withdrawn, the cases which were subsequently appealed and the occasions on which bail was awarded” (Paragraph 12.29).

15.     He also referred to the Senate debates on the Bill in 1981 where Senator Evans noted that there was a clearly definable area of court and tribunal activity that was legitimately the subject of public interest so far as efficient administration was concerned.  The Bill ought to be amended to make that clear.  The kinds of matters the committee had in mind were questions relating to the number of sitting days, the number of cases determined, the number of cases withdrawn, the number of cases which were subsequently appealed and criminal cases in which bail was awarded (Senate Debates 7 May 1981 p1768). 

16.     In Loughnan an unrevised transcript of ex tempore reasons for judgment was held to be a judicial document, even though it was no longer in the possession of the court.  Mr Doogan pointed out that Loughnan was followed by Senior Member Dwyer in O’Sullivan v Family Court of Australia (1997) 141 FLR 204 in refusing access to handwritten notes made by a Family Court counsellor for the purposes of a matter before the court. It was held that the provision of conciliation counselling involving a variety of intervention strategies depending on the needs of the particular case was not a duty of an administrative nature.

17.     Of central importance in this case is Mr Doogan’s uncontested evidence about how the document came into existence.   The application book in relation to the special leave application was referred to a panel of Justices for consideration.  As part of the deliberative process the document in question was brought into existence within Judges’ chambers as part of that judicial deliberative process.  Mr Doogan declared categorically that the contents of the document did not relate to matters of an administrative nature.  The fact that the document was prepared within Judges’ chambers, and not by a registry officer, puts beyond a doubt that it was a judicial document.  It is a clearer case than Loughnan, because in that case the outlines and trusts of the ex tempore judgment were settled, whereas in the present case the Justices were still deliberating. The exercise of the High Court’s power to grant special leave pursuant to ss 35 and 35A of the Judiciary Act 1903 is an exercise of judicial power (see Smith Kline & French Laboratories (Australia) Ltd v The Commonwealth of Australia and Others (1991) 173 CLR 194, 218). The panel of Justices constituted to consider Mr Simring’s application delivered their decision on 14 December 2005 and published their reasons for it. The reasons are brief, but the Court is not expected to give detailed reasons when deciding special leave applications, and seldom does (Ibid).

18.     As the document in issue was prepared in Judges’ chambers and not in the registry, it is not necessary to canvass the line of cases distinguishing between those exercises of a registrar’s powers that are judicial from those that are administrative.  Nor is it necessary, in view of the conclusion that I have reached below, to consider the respondent’s arguments based on the public interest and the separation of powers.

19. The applicant’s right of access to documents under s 11 of the FoI Act is expressed in s 11(1) to be “Subject to this Act”. It is therefore subject to s 5, which declares that the Act does not apply to a request for access to a court document unless it “relates to matters of an administrative nature”. The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document’s general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.

20. As the FoI Act does not apply to the document in question, s 55 of the FoI Act cannot operate to give jurisdiction to this tribunal. The tribunal has jurisdiction only when an enactment provides that applications for review may be made to the tribunal (AAT Act s 25(1) and (4)). As the decision is not reviewable by the tribunal, the tribunal has no jurisdiction and the application must be dismissed under s 42A(4). It is not necessary to consider Mr Doogan’s alternative argument that the application should be dismissed under s 42B as frivolous or vexatious.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  14 September 2006
Date of Decision  4 October 2006
Representative for the Applicant               Self represented

Representative for the Respondent          Mr C Doogan, Chief Executive and Principal Registrar, High Court of Australia