Wenzel and Department of Defence

[2004] AATA 1394

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1394

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2004/271

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID WENZEL

Applicant

And DEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date29 October 2004

PlaceCanberra

Decision The application by Ms Ross to be made a party to the proceedings is refused.

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CATCHWORDS

JOINDER OF PARTY – whether person seeking to be joined has interested affected by the decision – personal interests – application refused

Freedom of Information Act 1982 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) – 30(1A)

Re Peters and Department of Health and Aged Care (1999) 56 ALD 561

Defence Coalition Against RCD Inc v Minister for Primary Industries and Energy (1997) 46 ALD 582

REASONS FOR DECISION

29 October 2004 Mr J.W. Constance, Senior Member

1.      Ms Ross has applied to be made a party to these proceedings.  For the reasons set out the application is refused.

FACTS

2.      On 9 September 2004 Mr Wenzel applied to the Tribunal for a review of the decision of the Department of Defence denying him access to a number of documents he had requested under the Freedom of Information Act 1982 (Cth).

3.      On the same day Ms Ross applied to be made a party to the proceedings.  Mr Wenzel has consented to this application; the Department opposes it.

4.      Ms Ross is in a de facto relationship with Mr Wenzel.

5.      As a result of Mr Wenzel addressing issues he has with the Department (which include this matter before the Tribunal), Ms Ross has suffered disruption to her life and her resources (such as her computer which has been utilized by Mr Wenzel).  

6.      In her application Ms Ross sets out how she says the decision under review (ie. the decision on Mr Ross’s FOI application) affects her interests as follows:

·“I have been impacted greatly by the actions of the same Department of Defence as Mr Wenzel.

·I was subject to harassment by the same Department of Defence officer who harassed Mr Wenzel.

·I believe that Defence holds documents that Mr Wenzel has requested that I will also need to take action on.

·Delays in providing the documents requested through the Department of Defence impacts both Mr Wenzel and I.

·In order to support Mr Wenzel through this ordeal in the last year I have had to forgo opportunities and would like to see the FOI request treated fairly and finalised so that we can both address the issues it was submitted for.

·I have provided statements and made myself available to the Department of Defence in order to assist a timely resolution of the issues, and have even participated in an ‘Alternate Dispute Resolution’ process.  Defence has not yet taken the actions that it promised.

·I also wish to ensure that the statements and materials that I have provided to Defence are properly considered and acted upon.  Documents that could demonstrate this were included in the scope of the FOI request.  Defence has not yet provided any documents whatsoever that indicate it has taken any appropriate action against those involved.

·The fair treatment of the FOI request and actual provision of documents requested is essential to resolving the matters properly.

·I can’t proceed with my life while this is ongoing.”

7.      When Mr Ross applied to the Department for access to documents he intended that the application was for documents to be used by Ms Ross as well as himself.  Ms Ross appears to accept that this was the situation.

8.      The Department concedes that two of the documents to which Mr Wenzel has been denied access refer to Ms Ross.  Ms Ross does not object to Mr Wenzel having access to these documents.

9.      Ms Ross can make her own application to the Department for access to documents relating to her but has not done so.

THE LAW AND ITS APPLICATION TO THE FACTS

10.     Section 30(1A) gives the Tribunal power to order that a person “whose interests are affected by the decision” be made a party to the proceedings.  The exercise of the power is in the discretion of the Tribunal.

11.     The test in section 30(1A) focuses on the effect of the reviewable decision, not the decision the Tribunal may make, on the interests of the person applying to be joined; see Re Peters and Department of Health and Aged Care (1999) 56 ALD 561 at para. 34.

12.     In applying the test it is necessary to decide whether the person applying has “a special interest in the subject matter of the review.” Re Peters (supra at para. 40). The Tribunal cited Defence Coalition Against RCD Inc v Minister for Primary Industries and Energy (1997) 46 ALD 582 at 589:

“The critical question is the extent to which the interest of the applicant rises above that of an ordinary member of the public: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 132; 71 ALR 73 per Gummow J. That interest may be established where “… there flows from the decision… a danger and peril to the interests of the [applicant] that is clear and imminent rather than remote, indirect or fanciful, and the [applicant] has an interest in the matter of an intensity and degree well above that of an ordinary member of the public”: Broadbridge v Stammers (1987) 76 ALR 339 at 341 adopting the language of Gummow J in Australian Institute at 82.”

13.     Ms Ross’ stated concerns as to the effect on her lifestyle of Mr Wenzel’s difficulties in obtaining access to documents do not establish that her interests are affected in the manner envisaged by section 30(1A).  The interest must be more than those of a person who is affected by the problems of her domestic partner and who is understandably anxious that he succeeds in obtaining the outcome he seeks.

14.     Ms Ross has not been denied access to documents herself (she has not sought such access) so there are no issues in common with those Mr Wenzel seeks to have determined and which could be determined efficiently in the one hearing.  This distinguishes the matter before me from the application in Re Peters (supra).

15.     It would be different if Ms Ross was seeking to prevent Mr Wenzel’s having access to documents being sought by him, but this is not the case.

16.     As Ms Ross has not established that she is a person whose interests are affected by the reviewable decision it is not necessary that I consider the exercise of the Tribunal’s discretion under section 30(1A).

DECISION

17.     The application by Ms Ross to be made a party to the proceedings is refused.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Date/s of Hearing  18 October 2004
Date of Decision  29 October 2004
Representation for the Applicant               Self 
Representation for the party to be joined: Self
Solicitor for the Respondent                      Australian Government Solicitor