Singh and Office of the Australian Information Commissioner (Freedom of information)

[2023] AATA 2948

Singh and Office of the Australian Information Commissioner (Freedom of information) [2023] AATA 2948 (30 August 2023)

Division:Freedom of Information Division

File Number(s):      2023/3868

Re:Andrew Singh

APPLICANT

Office of the Australian Information CommissionerAnd  

RESPONDENT

DECISION

Tribunal: Emeritus Professor P A Fairall, Senior Member

Date:30 August 2023

Date of written reasons:        14 September 2023

Place:Sydney

The interlocutory application is refused.

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Emeritus Professor P A Fairall, Senior Member

Catchwords

PRACTICE AND PROCEDURE – interlocutory application – freedom of information – consolidation of applications – whether application should be heard with other applications – whether objectives of Tribunal served by consolidation – application refused

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

14 September 2023

INTRODUCTION

1. This is an application by Mr Singh (the Applicant) to consolidate this application with nine other applications[1] (the Other Matters) that are currently travelling together before the Tribunal. In four of the Other Matters, Mr Singh is the applicant, and in the remaining five, Mr Singh is representing two other applicants. All ten of these applications arise, and relate to requests made, under the Freedom of Information Act 1982 (Cth) (the FOI Act).

   [1] 2022/9995; 2022/9999; 2022/1000; 2022/10002; 2022/10697; 2022/10698; 2023/0561; 2023/1271 and 2023/1977.

2. It is important to note that in this application, the Respondent is represented by Holding Redlich, whereas the Australian Government Solicitor (AGS) has carriage of the Other Matters.

   BACKGROUND

3. This application relates to a FOI request that the Applicant made of the Respondent for various information and documents relating to the Respondent’s decision to place the Applicant on a “Single Point of Contact Arrangement” (SPOC arrangement). In response to the Applicant’s request, the Respondent provided ten documents, five in full and five only in part. The redactions to the latter five documents were made pursuant to sections 22 and 47F of the FOI Act.

4. The application for review was lodged on 30 May 2023. Shortly thereafter, the Applicant requested the application be consolidated with the Other Matters. On 14 June 2023, an in-house representative of the Respondent responded to this request by stating that their position was neutral. On 22 June 2023, the AGS representative in the Other Matters informed the Tribunal that AGS did not have carriage of this matter. Due to the difference in representation, the AGS representative also requested confirmation from the Tribunal that this matter had not been associated with the Other Matters.

5. On 7 July 2023, the AGS representative informed the Applicant that it had received formal instructions from the Respondent to object to the Applicant’s request to consolidate the applications.

6. On 3 August 2023, the Applicant made an application for an urgent interlocutory hearing, seeking first, consolidation of the matters and second, removal of Holding Redlich as the Respondent’s legal representative in these proceedings.

7. The Tribunal informed the Applicant that it would not entertain the application for the second order, but would receive submissions from the parties on the first. The parties agreed that this application be heard on the papers. On 30 August 2023, the Tribunal refused the interlocutory application, holding that this application is to proceed separately to the Other Matters. The Applicant requested written reasons upon receipt of the Tribunal’s decision.

   SUBMISSIONS

8. The Applicant submitted that the Tribunal should exercise its discretion under section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to consolidate the applications, as it had done previously in the Other Matters. The Applicant submits that the parties, governing legislation and issues are the same across all ten applications. The Applicant takes issue with the Respondent’s apparent change of position as noted above. The Applicant submits he has suffered prejudice and the Respondent “should not be able to resile from its position”. The Applicant also submitted that applications at the Tribunal should be resolved in the order of lodgement.

9. In its written submissions, the Respondent opposed consolidation on the basis that the applicants and subject matter of the Other Matters are different to this application. The Respondent notes that the Other Matters involve, in total, three applicants and redactions made under sections 24A, 42, 47, 47E(c) and 47E(d), 47G and 47F of the FOI Act.

   CONSIDERATION

10. The Tribunal does not accept the Applicant’s submissions. These proceedings are confined to considering whether sections 22 and 47F of the FOI Act apply in respect of five documents. The basis for those redactions, and indeed the scope of those redactions, are not extensive or complex. The FOI request in respect of the Applicant being placed on a SPOC arrangement is a discrete issue. It is the Tribunal’s view that this application could be resolved more expediently by hearing it separately from the issues agitated in the Other Matters.

11. The Tribunal notes that the Respondent changed its position as to consolidation. The Applicant has not substantiated his claim of prejudice, merely stating that he “acted on the respondent’s promise in the preparation and prosecution of all the reviews.” In the absence of any further detail, it is not clear to the Tribunal what prejudice the Applicant has suffered.

12. In circumstances where, in this application, the issues are confined, the Respondent is represented by a different firm, and it relates only to Mr Singh’s SPOC arrangement, the Tribunal sees no utility in hearing this matter with the Other Matters. It is the Tribunal’s view that hearing this application separately to the Other Matters would ensure it is resolved sooner. This ultimately serves the Tribunal’s guiding objectives as set out in section 2A of the AAT Act.

13. For completeness, it is not the role of the Tribunal to determine who may legally represent the Respondent in these proceedings. Though the Applicant may feel aggrieved that he must correspond with different representatives in these proceedings and the Other Matters, it is not for the Tribunal to question the Respondent’s decision to brief Holding Redlich.

    DECISION

14. The interlocutory application is refused.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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Associate

Dated: 14 September 2023

Date(s) of hearing:	30 August 2023
Applicant:	Mr A. Singh
Solicitors for the Respondent:	Ms K. Nguyen, Holding Redlich