Vel, Peter v Human Rights & Equal Opportunity Commission

[1997] FCA 1246

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 51 of 1997

BETWEEN:	PETER VEL APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION RESPONDENT
JUDGE:		WHITLAM
DATE OF ORDER:		30 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 51 of 1997

BETWEEN:	PETER VEL APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION RESPONDENT

JUDGE:	WHITLAM
DATE:	30 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

On 22 January 1997 the applicant filed notice of an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 16 July 1996. At the first directions hearing, on 21 February 1997, Hill J extended the time specified in s 44(2A) of the Administrative Appeals Tribunal Act 1975 (“the Act”) for filing the notice of appeal.

The proceeding before the Tribunal was the review of a decision under Pt VI of the Freedom of Information Act 1982 (“the FOI Act”). The applicant had applied to the respondent for access to certain documents by a request dated 18 April 1995. Access had been given to some of the documents. The respondent had refused to grant access to other documents on the ground that they did not exist or could not be found. The Tribunal affirmed the respondent’s decision.

Section 24A of the FOI Act provides:

“24A.  An 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.”

Applications to the Tribunal are dealt with in s 55 of the FOI Act, and subs 55(5) provides:

“(5)     The Tribunal’s power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.”

The notice of appeal does not state questions of law to be raised on the appeal. Instead, the applicant has listed in paragraph 2 of his notice of appeal three topics: fraud, failure to provide safe work environment and the Racial Discrimination Act 1975. He has also set out in that paragraph certain provisions of that Act and of the Convention in the Schedule to that Act. Not surprisingly, the respondent objects to the competency of the appeal.

The existence of a question of law is a prerequisite to the jurisdiction of the Court under
s 44(1) of the Act: Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515. I raised with the applicant the question whether he should have leave to amend his notice of appeal so as to raise a question of law. Unfortunately it soon became apparent that it would be pointless to give such leave. The applicant’s real complaint is that certain documents, to which he was given access in accordance with his request dated 18 April 1995, were not available to him prior to an inquiry held by the respondent on 3 September 1990: see Vel v Human Rights and Equal Opportunity Commission (unreported, Branson J, 16 April 1997). The respondent’s conduct of that inquiry was not, of course, the subject of review by the Tribunal under the FOI Act.

The applicant has the misfortune to be unrepresented.  He has been assisted today by a friend who has interpreted the proceedings for him in the Greek language.  However, the nature and content of the applicant’s oral submissions, together with the documents he has filed, confirm that the failure to state a question of law is not one of legal drafting, but of substance.

Leave to amend the notice of appeal is refused.  The appeal is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            30 October 1997

The applicant appeared in person.

K L Eastman, solicitor, appeared for the respondent.

Date of hearing:         30 October 1997

Date of judgment:      30 October 1997