Wright v Min. for Education, Employment & Training No. Dcaat-99-213, Dcaat-00-41

WRIGHT
-v-
MINISTER FOR EDUCATION, EMPLOYMENT & TRAINING
[2000] SADC 82

Judge Anderson
Civil

The Appellant was an employee of the College of Tafe at Croydon Park from 1988 until September 1999. From October 1988 until 1992 he was a full time lecturer in the Land Broking Course at that college.
Over the time from then until the hearing in this matter it appears from the evidence that there have been several so called “rationalisations” of both the responsible Government Department and the various teaching institutions and their groupings. For consistency in these reasons for decision I will do as was done in the evidence and refer to the Respondent employer of the Appellant as “Tafe”.
In 1992, the Appellant heard rumours that Tafe intended that his course be transferred to the Panorama campus. Notwithstanding that enquiries led to the belief that such an event was unlikely to occur, the Executive Programme Committee approved the transfer on 1 December 1992. It seems that this rationalisation was based upon forecast course savings of $148,000. No arrangements were made to enable the Appellant to transfer with his course. This caused him to have “a strong sense of grievance” (Tp530) as he doubted that the correct processes had been followed before the decision was made and that the identified financial benefit was illusory.
As a consequence of his concern he wrote to the Chief Executive Officer (“CEO”) of Tafe on 18 February 1993. In addition to his personal concerns and concern about the process adopted by the Committee, the Appellant sought access to “all documents relating to the transfer” (annexure A to D10).
There is no doubt from the evidence of the Appellant and of Mr Mulvihill, who in 1993 was the Acting Director Human Resources Tafe, that some of the documents sought were delivered to the Appellant on 29 April 1993 (see note on annexure JLH8 to P2). The documents which form this annexure were those delivered at that time.
In June 1993, the CEO responded to the Appellant’s letter and offered an apology as to the procedures adopted relating to the “transfer of the Land Broking Programme to Panorama” (JLH1 to P1). Proposals to accommodate the Appellant’s personal teaching role at the Croydon Park College were in that letter.
Prior to that letter being received the Appellant had, on 24 May 1993, made a formal request pursuant to the Freedom of Information Act 1991 (“the Act”) by letter to the CEO.
From the time of his first request in February 1993, the Appellant had dealings with Mr Mulvihill. Following his letter of 24 May 1993, he also came to deal with Mr Harris, the CEO’s delegated Freedom of Information (FOI) officer.
A meeting between the Appellant and Mr Mulvihill on 4 June 1993 led to the Appellant supplying a long and somewhat detailed list of the documents he sought. This list was sent to Mr Mulvihill under cover of the Appellant’s letter of 14 June 1993 (JLH3 to P1). Whilst the list was detailed as to the topics which the Appellant saw to be relevant to his request, he was not able to specify precise and individual documents because he had no specific knowledge of what existed.
Following the receipt of this list, Mr Mulvihill seems not to have passed it to Mr Harris. In evidence, Mr Harris said that he did not first see this list until the matter was reactivated some years later. It seems from the evidence that Mr Mulvihill was not aware of the formal FOI request of 24 May 1993 and was dealing with Mr Wright independently of Mr Harris in the hope that he could resolve the matter. He did not provide any further documents following his receipt of the letter of 14 June 1993.
Mr Harris agreed in evidence that he spoke with the Appellant after the matter was referred to him by the CEO in May 1993 seeking some greater detail of what was required. As I have said, he was not in receipt of the June 1993 list from the Appellant or from Mr Mulvihill. In evidence he said that that telephone discussion caused him to believe that the documents which the Appellant had received in April 1993 were of some value to him and he wrote on 17 July 1993 to the Appellant seeking “further details” of documents sought. He received no reply. Mr Harris said that he had the impression from his conversation with the Appellant that he was no longer enthused about his FOI request.
Indeed, the Appellant there let the matter lie for over three years until late 1996. This period of inaction coincides with his receipt of the CEO’s letter of 22 June 1993, notwithstanding the Appellant’s evidence that he did not consider that letter to be “satisfactory” (Tp537).
In late 1996, when it was proposed to merge the Western Adelaide campus of Tafe, which then included Croydon Park, with Panorama, the Appellant decided to renew his efforts to obtain access to documents. He did this by a memo dated 27 November 1996 (JLH4 to P1) sent to the Chief Executive via his Institute Director. That memo was passed to Mr Harris who replied by letter dated 18 November 1996 (JLH5 to P1). This date is clearly wrong and should be either 28 November or 18 December. This reply included the formal rejection of the earlier (24 May 1993) FOI application on the basis that it had lapsed. Presumably this conclusion was reached by applying a combination of s19(2) and s29(2)(e) of the Act.
Mr Harris did, however, offer to search for documents as he was now provided with a copy of the list of required documents sent to Mr Mulvihill in the letter of 14 June 1993. The Appellant had enclosed it in his 27 November 1996 memo. I accept Mr Harris’ evidence that this was the first occasion on which he had knowledge of this list.
It seems no further documents were immediately available. In early 1997 the Appellant again met with Mr Mulvihill and apparently thereafter gave him a letter addressed to the Chief Executive. This letter was not sent as Mr Mulvihill continued to try to resolve the matter and have the Appellant concentrate upon his teaching career. It is uncertain when Mr Mulvihill first made contact with Mr Harris in this regard. In April 1997 the Appellant and Mr Harris met to inspect documents and subsequently information was sought about that inspection by Mr Harris in his letter to the Appellant of 2 May 1997 (JLH6 to P1).
There was no specific reply until Mr Harris received a request for documents contained in a letter of 5 May 1997 sent for his attention by solicitors instructed by the Appellant. Documents were provided to them by letter of 23 June 1997. It is apparent from Mr Harris’ evidence that whilst no list of those documents was kept, a copy of what was supplied is contained within the folder marked as “No 1”, which later became Exhibit P5.
Thereafter, the Appellant made a more formal request for access by his undated letter addressed to the Chief Executive (JLH10 to P1). This request is marked as having been received on 22 October 1997.
A further formal request for access, to the same addressee, was dated 22 October 1997 and marked as received on 23 October 1997.
The first October request related to the transfer of the landbroking programme in 1992 and the appointment of a staff member. The second related to documents about funding the salary of Mr John McInerney. Receipt of the second request was acknowledged by Mr Harris to the Appellant by letter of 28 October 1997. A further letter of 11 November 1997 granted access in full to the documents sought and copies were enclosed.
On 12 November 1997, Mr Harris determined that part of the first application which related to the appointment of a staff member by granting full access, except for some deleted personal information, and provided copies.
A further determination, dated 5 December 1997, adopted Mr Harris’ determination of 14 July 1993 and deemed it to still apply to the first October request. It was a more comprehensive determination than that of 12 November 1997 as it sought to address the full request. In particular, it was made clear to the Appellant that Tafe was granting full access, having searched widely via many named persons and had, over time, and at that time, provided all documents which it had located. The Appellant was invited to identify any areas where he thought searching would be beneficial or was otherwise inadequate.
Before writing the October 1997 requests, the Appellant had, throughout 1997, maintained some contact with Mr Mulvihill. A second letter was sent by the Appellant to Mr Mulvihill for the Chief Executive on 18 August 1997 (JLH5 to P2). That letter identified five areas which comprised what the Appellant referred to as needing attention in order “to achieve some degree of justice”. Mr Mulvihill forwarded this letter.
It also contained a further FOI request for the documents referred to in the letter dated 14 June 1993. It was referred to Mr Mitchell, Director Human Resources, by the Chief Executive. Mr Mitchell acknowledged receipt on 21 August 1997. His letter sought further information and indicated that he would investigate the matters raised by the Appellant.
On 16 October 1997, Mr Mitchell again wrote to the Appellant seeking that correct procedures to resolve complaints be followed. Perhaps this led to the two October requests to which I have referred. As much is not clear from the evidence.
It is apparent, thereafter, that the Appellant spoke with Mr Mulvihill and, as a result thereof, had a meeting with Mr Mitchell on 10 November 1997. On 8 December 1997, the Appellant wrote to Mr Mitchell re‑stating his position. It seems, from the evidence of Mr Harris, that that letter may have been treated as a further request for documents.
On 24 December 1997, Mr Mitchell wrote to the Appellant setting out the results of his investigation of those matters raised by the Appellant in his letter of 18 August 1997. The effect of that letter was that the Appellant’s complaints and requirements, as outlined, would not be further investigated.
The Appellant was critical of Mr Harris in cross examination because, after the determination of 5 December 1997, no further documents were received by him in relation to the granted access, which had been re‑stated in that letter, until July 1998. However, I accept the evidence of Mr Harris that he continued to seek relevant documents to comply with the access granted from December 1997 and that documents were provided when they became available.
By this time a quite considerable number of documents had been provided to the Appellant concerning events which were then about five years old. There is no evidence to support the suggested inference that Mr Harris was dilatory in his approach to the Appellant’s request for documents. I accept that by this time Mr Harris was an experienced FOI officer and had sought documents from all likely sources within Tafe. That some were slow in coming or were found, for whatever reason, to no longer exist, in my opinion, reflects more adversely upon the Appellant, who chose not to pursue his initial request for more than three years, than it does upon Mr Harris. I am satisfied that Mr Harris went about his task in the required manner. That he was then unable to locate documents which were later found to have been inadvertently destroyed (e.g. the Panorama roll books) or lost because of computer failure, does not in any way detract from his handling of the request for access to documents.
The suggestion made by the Appellant that Mr Harris was or had become, over time, hostile to him and his many repeated requests is not supported by any evidence. Indeed, notwithstanding any personal view which he may have held of the Appellant, the evidence shows that throughout the whole time Mr Harris sought to obtain and grant access to whatever documents existed until the avenues for search were exhausted. That Mr Harris was of the opinion that some further documents of a particular type “may exist” (paragraph 9 of P3) does not derogate from this conclusion.
The balance of 1998 produced no further documents relevant to these appeals. However, it is common ground that in that period the Appellant made other unrelated requests and dealt with Mr Harris about them.
By undated memo received at Tafe on 28 January 1999, the Appellant sought an internal review of the determinations relating to the two October 1997 requests and the application of 8 December 1997, to which Mr Mitchell had replied on 24 December 1997. This review purported to be pursuant to s38 of the Act. The correct section relating to an internal review pursuant to applications made under Part 3 of the Act, which these were, is s29, but no point was taken by Tafe.
It seems, from a note made by Mr Harris of a telephone conversation with the Appellant on 29 January 1999, that he did not pursue his request in relation to his letter to Mr Mitchell of 8 December 1997 and no further action was taken in relation to it.
By letter of 4 February 1999, the application for internal review of the determinations of the two October 1997 requests was rejected as being out of time pursuant to s29(2)(e) of the Act.
On 8 June 1999, the Appellant lodged an appeal to this Court against, inter alia, the refusal to provide documents. That portion of the appeal was subsequently struck out as being out of time pursuant to s41 of the Act.
This topic was immediately the subject of a further FOI request, dated 9 September 1999. It was received by the Chief Executive but was not accompanied by the statutory fee. That fee was paid on 17 November 1999 and the request was taken to have been made on that day.
By letter of 23 December 1999, Mr Harris determined that this request relating to the transfer of the landbroking programme in 1992 would not be dealt with for the reasons set out at the conclusion of Part One of that letter (B to P5).
The balance of the application was granted in full, except for some exemptions based upon legal professional privilege. Apparently, no access has yet been taken because certain statutory fees fixed by Tafe pursuant to the Act have not been paid by the Appellant.
On 7 January 2000, the Appellant sought an internal review of this determination.
On 27 January 2000, an internal review made some slight, inconsequential amendments to the determination, but otherwise upheld it.
On 4 February 2000, the Appellant filed his notice of appeal and supporting affidavit. The Appellant seeks an order for access. Paragraph 2 of the notice refers to two applications. It was agreed at the outset of this hearing that only one application was involved. By oversight, no formal amendment to the notice was then made. It now should be and I so order.
By consent, this appeal was heard with the balance of the notice of appeal of 7 September 1999. This notice of appeal had been substituted for that dated 8 June 1999 and relates to requests made on 28 January 1999 and 2 March 1999 seeking the amendment of records. These requests concerned documents which had been made available to the Appellant consequent upon his various requests concerning the transfer of the landbroking programme.
An application for the amendment of an agency’s records is made pursuant to s30 of the Act. That section is in these terms:
“30.. A person to whom access to an agency’s documents has been given may apply for the amendment of the agency’s records if-
(a).... the document contains information concerning the person’s personal affairs; and
(b).... the information is available for use by the agency in connection with its administrative functions; and
(c).... the information is, in the person’s opinion, incomplete, incorrect, out-of-date or misleading.”
Ms Hodder of counsel for the Respondent submitted that many of the individual requests for amendment should be refused as the Appellant, who appeared in person, had not established that either s30(a) or (c) was applicable. Ultimately, no issue was taken in relation to ss(b).
A significant issue, to which I shall return, is whether or not many of the requests contained in these two appeals relate to “personal affairs”. That expression is defined in s4(1) of the Act in these terms:
““personal affairs” of a person includes that person’s-
(a)     financial affairs;
(b)     criminal records;
(c)     marital or other personal relationships;
(d)     employment records;
(e)     personal qualities or attributes;”
The application for amendment of records received on 28 January 1999 was determined by Mr Harris on 12 March 1999. Amendment was sought to many paragraphs of a minute dated 19 February 1998 (JLH20 to P1). As all of the Appellant’s application was not granted in that determination, the Appellant sought an internal review thereof by the Chief Executive pursuant to s38 of the Act, by letter of 25 March 1999.
On 10 April 1999, the Chief Executive advised the Appellant that he confirmed the earlier determination.
On 2 March 1999, the Appellant had similarly sought the amendment of three other Tafe minutes as identified in his application of that date (JLH24 to P1).
On 12 April 1999, Mr Harris determined that application. That determination led to an internal review application on 20 April 1999. On 22 June 1999, the Chief Executive confirmed the determination in relation to the first two documents on the basis that the information there did not concern the Appellant’s personal affairs. In relation to the third document, internal review was refused and the original determination was varied by adding a reference to s30(c) of the Act to support that decision.
The substituted notice of appeal seeks orders, in parts B and C thereof, that the Respondent correct its records in accord with the applications dated 28 January 1999 and 2 March 1999 and provide information pursuant to s36 of the Act in relation thereto.
Section 42 of the Act provides that the appeals be by way of re‑hearing and allows for evidence to be taken. I have proceeded on the basis that a re‑hearing is a hearing de novo and, as such, the appeals are to be determined on the bases found to exist at the time of the hearing. They are not a prescient examination fixed in time by the dates of the determinations and the internal reviews the subject of the appeals (see Ipex Information Technology Group Pty Ltd v The Department of Information Technology Services South Australia (1997) 192 LSJS 54 @ 57).
Section 48 of the Act provides that in proceedings such as these appeals, the Respondent must establish that a determination is justified. To this end, Ms Hodder tendered three affidavits sworn by Mr Harris and he was cross examined by the Appellant. In addition, other persons from Tafe who were the subject of subpoenas issued by the Appellant were called by Ms Hodder. This course obviated the need to finally resolve an earlier and partially heard application to set aside those subpoenas. Mr Mulvihill, Mr Stevens, Mr Turner, Ms Wandell and Mr Kelton gave evidence more particularly concerning the Appellant’s appeal relating to access to documents. Some were cross examined as to the appeal as to amendment of records. Other witnesses were also called on this issue by the Respondent.
At the conclusion of the cross examination of all of these witnesses, the position relative to the access appeal had not substantially changed. The position at the conclusion of the viva voce evidence, when taken with the evidence of Mr Harris in his three affidavits, shows comprehensively, in my opinion, that Tafe has given access to all documents, relative to the Appellant’s many requests and including that the subject of the appeal, which it could locate. Whilst it might be regrettable that the provision of all existing documents was not made promptly after each request, I am not able to say that the various requests for particularity of the Appellant’s June 1993 request were wrong or misconceived or in some way imputed improper motives to those who sought to deal with them.
That the Appellant allowed about three and a half years to go by after receiving Mr Harris’ letter of 17 July 1993, with the obvious problems which such a delay caused in relation to document location and personnel recollection, is not indicative of recalcitrant behaviour on the part of Tafe or its officers.

There is simply no evidence to challenge the evidence called by the Respondent. Each witness asked asserted positively that, when asked by the FOI officer, Mr Harris, a search for documents was made and those located were forwarded to him. It is not in dispute that all of the documents obtained by Mr Harris, from whatever source, were provided to the Appellant. The exhibits P5 and P6 contain a copy of those documents and prior to this hearing, at a directions hearing, the Appellant had indicated that he had received copies of those documents.
I accept the evidence of Mr Harris that, whilst it is always possible that some other relevant documents may exist, he believes that the various searches, over years, have exhausted those which are presently available.
No evidence was led by the Appellant which in any significant way challenged the evidence called on this appeal by the Respondent. I find that access has been given to all available documents. That it has not been taken in relation to some is a matter for the Appellant. At the end of the day, no challenge was mounted to those for which exemption was claimed in the determination of 23 December 1999.
The appeal against the determination of 23 December 1999, as varied by the Chief Executive on internal review on 27 January 2000, is refused.
The notice of appeal, in addition to seeking access to documents, refers to the requirements of s36 of the Act. That section sets out the requirements of a determination. On the assumption that this is a valid head of relief, in my opinion, each part of the determination of 23 December 1999, as varied, complies with that section. Access has been granted in part and so there is no reason to give findings. Where access is refused reasons have been given.
I return to the first application for the amendment of records which is Part B of the notice of appeal.
The document of which amendment was sought is minute DETE 903/97 to the Chief Executive from Mr Mitchell, dated 19 February 1998 (JLH20 to P1).
After the appeal was instituted, the Respondent filed an affidavit sworn by Mr Harris and dated 11 April 2000 which became exhibit P2. That affidavit changed the Respondent’s position in relation to some parts of the determination. It was now agreed that certain amendments to the document be made.
The amendment to paragraph 2 of the minute is to be in the form agreed to in paragraph 9(a)(i) and (ii) of exhibit P2. Thus, the word “August” is to be deleted from the first sentence. The last sentence is to be replaced with the words “Mr Wright’s concerns included nepotism or malice in the employment of an additional person to do the work he was employed to do and the probability of fraud and conspiracy in the decision making process.”
The correction sought by the Appellant to paragraph 3 of that minute was not agreed to by the Respondent. Ms Hodder submitted that this paragraph does not come within the provisions of s30(a) of the Act which refers to information in a document concerning “personal affairs”.
This submission raises the issue of what constitutes “personal affairs” for the purpose of s30(a). There has been some discussion in the cases of the breadth of those words but often referring to them where their definition is different from s4(1) of the Act. To my mind their meaning should be broader rather than narrower, but will always have regard to the context of the document.
The Appellant submitted, initially, that it was sufficient that he was named in the topic of the memo to enable it to be described as “concerning [his] personal affairs”. However, he then seemed to have regard to the use of the word “information” in sub‑section (a) and that it was subservient to the word “document”, as it is used in the section. To the extent that this was a retreat from his initial submission, I think him correct. It follows that I agree with his submission that information within a document to which access has been given and which information refers to his “personal affairs” should be correct.
There seems to be no doubt that where there is a discussion of information concerning criminal charges, or of an investigation in relation to an individual such a discussion will usually relate to their “personal affairs”: Re Kahn and Australian Federal Police (1985) 7 ALN N190. Such a conclusion is well within the breath of the definition of “personal affairs” in s4(1) of the Act.
The “concerns” to which paragraph 3 in this minute relate must be seen in the ongoing context of the minute. This was, overall, a minute of advice to The Chief Executive. The Appellant was the topic. Paragraph 3 relates to the allegations or “concerns” which the Appellant had. Even though I am satisfied that there had been an investigation of these concerns, contrary to the submissions of the Appellant, I am not of the view that this paragraph contains information concerning his personal affairs. More correctly, it contains a comment, in an administrative sense, as to Departmental action and is not a discussion of the investigation itself. The self serving word “carefully” should be removed from the paragraph which otherwise should remain as it is.
Paragraph 4 of the minute is amended by consent by deleting the third sentence thereof and replacing it with the following: “Mr Wright attended the campus on Tuesday 10 February 1998 to teach all classes allocated to him.”
Having heard the evidence of Mr Mulvihill, the fourth sentence is clearly incorrect. It is to be amended to read “Mr Wright attended the campus for two weeks in February 1998 and taught his classes”.
The correction agreed for paragraph 5 is such that after the word “advised” in the first sentence thereof, the following words are to appear by way of amendment; “that he would not be in on that day or the following day except briefly but that he was ‘on duty’”. The present words to the end of that sentence are to be deleted.
As for paragraph 5, amendments to paragraph 6 were also agreed during the hearing. Accordingly, after the word “correspondence” is to be inserted; “and advised that was why he was reporting in to Moira Lugg. He advised that he wanted to know in writing from Mike Mulvihill what days he was asking about”. The words presently appearing after “correspondence” are to be deleted.
No further amendments were sought to this minute.
The Appellant attacked the position taken by Mr Mitchell in his letter dated 24 December 1997. On the evidence there is no basis for such an attack. The Appellant was unable to lead any evidence or to cross examine Mr Mitchell so as to impugn either that letter or his evidence. I accept the evidence of Mr Mitchell and find that he conducted an adequate investigation into the allegations made by the Appellant before he wrote to him on 24 December 1997.
Nothing flows from the evidence which in any way supports further corrections to this minute other than have been agreed, or as I have ordered. The appeal in relation to this minute is therefore allowed to that extent. Annexure 1 to these reasons is the minute, the subject of paragraph B of the notice of appeal, in its amended form.
Part C of the notice of appeal relates to the Appellant’s application received on 2 March 1999 (JLH24 to P1). The minutes of which amendment is sought are JLH25 to P1. In each instance the Appellant sought the correction upon the basis that the documents are “incomplete or misleading”.
The first is identified as DETE CE 98/176 010. This is a minute to The Chief Executive from Ms Daley then Director, Human Resources, Tafe dated 1 July 1998. It was prepared by her with assistance and input from Ms Phillips who was an internal Tafe investigator. Each gave evidence and was cross examined.
At the outset it is important to again draw the distinction between the use of the word “document” and the word “information” in s30(a) of the Act. As the Appellant here seeks amendment upon the basis of being “incomplete .... or misleading” (s30(c)) it is important to note that what may be corrected is information in a document and not simply that the document be rewritten. It is also important to have regard to the context in which the document was prepared.
The Appellant’s submission that the minute be amended by the insertion of three additional paragraphs following the second dot point is based upon a misunderstanding of the purpose of the minute. The minute in no substantial way focused upon the Appellant’s knowledge or belief during 1991/1992. Such topics were in no way relevant to the purpose of the minute as it is described therein.
However, it would be correct to insert as the last sentence of the second dot point the words: “This decision was confirmed by the Executive Programme Committee in December 1992.”
In my opinion, the Respondent has shown that the initial portion of this minute is not incomplete or misleading. There is no evidence that, having regard to its purpose, it is in some way not complete or not fully formed or lacking something: Re Frances and Department of Defence Unreported AAT Cth 22 Dec 1995. Similarly, it is not misleading in the sense of giving the wrong impression or leading astray: Page and Director-General of Social Security (1984) 6 ALN N171.
What is sought to be inserted at this point in the minute is principally the subjective position of the Appellant. There is no basis for such a position to be included in the minute.
The Appellant alleges that the third bulleted paragraph is incomplete and inaccurate. Clearly, there is no basis upon which it may be said that the contents of this paragraph concern the personal affairs of the Appellant. There is clear evidence that the Appellant was no longer required to teach the removed course and that that was as a direct consequence of the programme transfer. At all times this process has been referred to by Tafe as a rationalisation. Thus, the opening words of the paragraph are to remain. They are not misleading and the context is not incomplete and inaccurate.
The request relating to the final words in the paragraph - following the word “redeployed” - has been shown by the evidence to be inaccurate. Likewise, they cannot in any way be said to relate to the Appellant’s personal affairs. The evidence shows that in mid‑1993 the intention was as set out in the impugned words: see exhibit D10 - annexure D and exhibit D1, both dated 22 June 1993. This paragraph is not incomplete or misleading.
The determination was that the application could not be considered as not relating to personal circumstances. This was not the ground of appeal. But, even allowing for s30 to be read disjunctively, I am of the opinion that the paragraph is accurate.
The Appellant sought to amend the fourth bulleted paragraph on the basis that it was misleading by referring to the letter of 22 June 1993 from the Chief Executive as an “apology”. The determination refused the initial request on the basis that “a departmental document is not a personal matter of any person”. That shows the same misapprehension as the Appellant insofar as the “document” has become confused with the information in it. In my opinion, the reference to a letter directed to the Appellant from the Chief Executive gives rise to the “personal affairs” of the Appellant.
The letter of 22 June 1993 contained, inter alia, an apology to the Appellant. To that extent, the paragraph is not misleading or inaccurate.
The words “which letter also proposed as to his further employment in the expectation that the matter be quickly and satisfactorily resolved” are to be added to this paragraph from the word “transfer”. This gives a more complete description of the contents of the Chief Executive’s letter.
It is not correct to say that the fifth bulleted paragraph refers to the employment of the Appellant. Consequently, it does not relate to the Appellant’s “personal affairs”.
However, the Respondent is prepared to substitute this paragraph:
“Nothing further was heard from Mr Wright until November 1996 when he re‑opened his application of 24 May 1993 under the Freedom of Information Act. In August 1997 he forwarded a letter to the Chief Executive raising a number of concerns including alleged fraud, conspiracy and nepotism relating to the 1992 program transfer.”
In my opinion, this concession more accurately reflects the real position at the time when the memo was prepared even though it is apparent from the evidence that the Appellant’s dealings with Mr Mulvihill in late 1996 and through to August 1997 were informal in the sense that it was an attempt by Mr Mulvihill to resolve the matter within the campus rather than report each encounter with the Appellant during this time to the bureaucracy in a formal way and that the Appellant was then content for this relationship to proceed in this way.
The Appellant alleges that the sixth bulleted paragraph is false, which I take to mean, in the terms of s30(c), “misleading”. Again, this paragraph is to be read in the context of the minute at the time of its formulation. I am not of the opinion that the first sentence relates to the Appellant’s “personal affairs”. Having heard evidence of quite exhaustive searches for documents over many years neither am I of the view that it is misleading as at July 1998. The second sentence may create an impression that the Appellant has provided nothing in response to various requests. In fact, he has provided various written material to different persons at different times, but little of it, like his evidence, contained any real degree of specificity. It was principally accusation upon allegation with no adequate or clear response to the enquiries made of him.
In my opinion, that sentence should be amended by the insertion of the word “adequate” after the word “any”. Whilst it may be possible to rewrite the whole paragraph with the benefit of hindsight, that is not the purpose of these proceedings. No further amendment to that paragraph need be made.
The seventh bulleted paragraph concerns the Appellant’s personal affairs. The second sentence is said to be misleading, but I do not comprehend on what relevant basis. Clarity of expression may be enhanced if the word “many” were to replace “a number of” in the sentence.
The insertion of a further paragraph after the seventh bulleted paragraph was sought. It could only occur if the minute is otherwise materially incomplete. What is sought to be inserted is a subjective comment by the Appellant which goes not at all to the enhancement of the minute. As such, the minute cannot be seen to be materially incomplete and so is not misleading.
The Appellant sought a final amendment to this minute in the second paragraph under the heading “Comments”. This was refused as it was seen to be a rewriting of the document. In my opinion, the amendment sought is of different meaning from the words impugned. They are the Appellant’s personal view and quite out of context when the document is considered as a whole. Thus, this amendment should not be made.
A minute DETE 837/98 252 402 is the second document in the Appellant’s application of 2 March 1999. This minute is dated 7 September 1998 and is to The Chief Executive from Mr Richardson, Director, Executive Services.
The Appellant seeks to have some further form of words, which he has not specifically formulated, added to the fourth paragraph under the heading “Comment”. This request was refused in the determination on the basis that the paragraph did not relate to the Appellant’s personal affairs. This response was correct. There is no basis upon which the minute relates in any way to the subject covered by the Appellant in his request. The minute is not incomplete or misleading in this regard.
A request was also made in relation to the following paragraph. It was refused, quite correctly in my view, on the basis that it did not refer to the Appellant’s personal affairs. In any event, the Appellant’s suggested form of words would change the context of the minute and it is not misleading or incomplete without them.
The Appellant also sought to have the second and third sentences of the final paragraph under the heading “Comment” amended. Again, it was rejected in the determination as not relating to the Appellant’s personal affairs. I also agree with this refusal. What was sought to be inserted was the Appellant’s quite subjective view of events which again are quite disjointed from the context of the minute. What appears in those sentences is accurate and is supported by the evidence.

100 In the result there are no amendments to this minute.

The third minute to which the Appellant’s request of 2 March 1999 relates is DETE 98/837, dated 9 November 1998, to The Chief Executive from Mr Richardson, Director, Executive Services.

102 The Appellant asserts that the third paragraph is false, but has not provided an alternative form of words. The expression “authority to exchange information” is unclear in the context of the paragraph. I agree that the enlarged form of words set out in paragraph 12(a) of exhibit P2 is a more appropriate and contemporaneous statement as to the then existing circumstances. They are:

“After a significant delay, Mr Wright recently provided his authority to Dr Earle Williams to release the information requested by Mr S Kelton, Director Human Resources, in his letter, a draft of which dated 7 August 1998 had been provided to his solicitors, C B McDonough & Co.”

103 These words are to be inserted in lieu of the sentence which is the third paragraph of the minute.

104 The request relating to the fifth paragraph was withdrawn by the Appellant during trial.

105 A further request relates to the first paragraph under the heading “Comment”. It is now agreed that the form of words requested by the Appellant to replace the second sentence be inserted. That sentence will now read:

“The assignment contained details of Mr Wright’s allegations against the department and a number of its officers. He states that three senior officers, including Mr John Turner (Educational Manager) made fraudulent misrepresentations to the Minister and that Mr Mike Mulvihill (Institute Director) must have known that they did.”

106 The final request seeks the insertion of an unspecified form of words at the conclusion of or in lieu of the second paragraph following the heading “Comments”. In my opinion, in the context of the minute and, having read the assignment to which it refers (JLH12 to P2), the paragraph is not misleading or incomplete. It is also doubtful that it relates to the Appellant’s personal affairs.

107 The appeal of 17 November 1999 is allowed to the extent indicated. It follows that no order relating to compliance with s36 of the Act is appropriate. Annexed to these reasons and marked 2 is each minute the subject of paragraph C of the notice of appeal amended as ordered.

108 It is not possible to conclude without a comment as to the witnesses. Those called for the Respondent were experienced Tafe administrators who had, because of the nature of their involvement in these matters, varying degrees of recollection and knowledge of the circumstances. Even though it seems that Tafe, over the time referred to in these proceedings, seems to have been something of an administrative maelstrom, I formed the view that each of these witnesses sought to give evidence to the best of his or her ability. They were subjected to cross examination which was ill directed and frequently irrelevant. At no time did I form the opinion that any of them had done other than seek to comply with their legislative obligation, or with the proper requests of Mr Harris made pursuant thereto, and to the best of their ability.

109 The Appellant gave evidence in much the same way as he conducted the whole trial. He was disorganised and ill‑prepared. I have no doubt that this was because of his fixation about the matters upon which he instituted the appeals. Unfortunately, over the years it seems that he has found it almost impossible to stand back and look at what had been provided to him and to analyse it in any meaningful way. Consequently, his energy during the appeals was almost entirely mis‑directed. He was more interested in what he was convinced had occurred than what was precisely relevant to the appeals which he instituted.

110 I shall hear the parties to the form of the final orders.

ANNEXURE 1

MINUTE forming ENCLOSURE to DETE 903/97

TO: THE CHIEF EXECUTIVE

RE: SUSPENSION OF MR MICHAEL WRIGHT

Purpose

That Mr Michael Wright, Lecturer at Douglas Mawson Institute be given the opportunity to comment on his proposed suspension.

Background

Mr Michael Wright is employed as a full-time Lecturer at Douglas Mawson Institute. During 1997, Mr Wright raised a number of concerns relating to the transfer of the Land broking program from Croydon campus to Panorama campus in 1992/93. Mr Wright’s concerns included nepotism or malice in the employment of an additional person to do the work he was employed to do and the probability of fraud and conspiracy in the decision making process.

Mr Wright’s concerns were considered, further information was sought and advice (verbal) was obtained from the Crown Solicitors Office. Mr Wright was advised that there was no sufficient evidence to formally investigate his concerns.

One of the issues identified as a result of Mr Wright raising his concerns was that Mr Wright’s skills have not been fully utilised for a number of years. The Institute Director, Mr Mike Mulvihill, arranged a teaching programme to be developed for Mr Wright so that himself and his skills are fully utilised. Mr Wright attended the campus on Tuesday, 10 February 1998 to teach all classes allocated to him. Mr Wright attended the campus for two weeks in February 1998 and taught his classes. Since then Mr Wright has briefly visited the campus on a few occasions. When asked whether he was absent due to illness he replied no.

Mr Wright contacted his assigned line manager, Ms Moira Lugg on Thursday, 12 February and advised that he would not be in on that day or the next except briefly but that he was “on duty”. As a result, the Institute Director wrote to Mr Wright on Thursday, 12 February advising him that his employment contract as a Lecturer requires him to provide a range of educational and training services to students and Departmental clients and that these services will be provided at the Croydon/ Pt Adelaide campuses. Mr Wright was directed to return to duty immediately and advised that failure to do so could render him liable to disciplinary action under Section 26(1) of the Technical and Further Education Act.

On Monday, 16 February 1998, Mr Wright acknowledged receiving this correspondence and advised that was why he was reporting in to Moira Lugg. He advised that he wanted to know in writing from Mike Mulvihill what days he was asking about.

On Tuesday, 17 February 1998, Mr Wright advised that he would be taking the two allocated classes on Tuesday.

Comment

Reasonable attempts made by the Institute for Mr Wright to report to full-time duty as a Lecturer have not been successful. It is understood that Mr Wright is not ill.

The Department is of the view that the teaching program for Mr Wright is reasonable and within his area of expertise. Mr Wright is employed as a full‑time Lecturer and the proposed teaching program and related duties are consistent with the role expected of a Lecturer in accordance with DETAFE (Educational Staff) Interim Award.

Recommendations

It is recommended that the attached letter be signed to provide Mr Wright with an opportunity to comment on his proposed suspension and whether that suspension should be with or without remuneration.

Contact

Mr John Mitchell, telephone 8226 0817.

JOHN MITCHELL
DIRECTOR OF HUMAN RESOURCES (VET)

19 February 1998

ANNEXURE 2
1 of 3

MINUTE forming ENCLOSURE to DETE CE 98/176 010

TO: THE CHIEF EXECUTIVE

RE: COMPLAINT FROM MR JOHN TURNER

Purpose

To provide background briefing notes and an appropriate response.

Background

·.. Mr Michael Wright is employed by the Department as a Lecturer, teaching Law/Business Services related subjects.

·.. Prior to 1993, Mr Wright was teaching Land-broking subjects. In 1991/92, the Business Studies Program group determined that Panorama campus take responsibility for the statewide delivery of the Real Estate and Land-broking program including external studies. This decision was confirmed by the Executive Programme Committee in December 1992.

·.. Due to the program rationalisation, Mr Michael Wright (at that stage with a 0.6 commitment to Land-broking) was no longer required and was to be redeployed to another related teaching area within the Business Studies program.

·.. In 1993, Mr Wright raised his concerns regarding the transfer of the Land‑broking program to Panorama. Mr Wright received a letter of apology from the Chief Executive for the inconvenience caused to him as a result of the program transfer which letter also proposed as to his further employment in the expectation that the matter be quickly and satisfactorily resolved.

·.. Nothing further was heard from Mr Wright until November 1996 when he re‑opened his application of 24 May 1993 under the Freedom of Information Act. In August 1997 he forwarded a letter to the Chief Executive raising a number of concerns including alleged fraud, conspiracy and nepotism relating to the 1992 program transfer.

·.. Reasonable attempts have been made by Departmental officers to locate any evidence which could have substantiated Mr Wright’s allegations. Despite being requested to provide some substantiation, Mr Wright has not at any stage provided adequate detail or examples to support his allegations. In the absence of this evidence, it is not possible to pursue the matter further.

·.. It is clear that Mr Wright does not accept this outcome. He has raised his concerns with many persons, including his students and his local member of Parliament, Ms Robyn Geraghty, on two occasions.

·.. In approximately February 1998, a group of students studying Commercial Law Principles were given an assignment to complete (attachment 1) as part of their assessment. The assignment presents a scenario detailing Mr Wright’s views and allegations relating to the 1992 program rationalisation and provides the actual names of Departmental officers involved. Management of the Douglas Mawson Institute have found it necessary to caution the students involved in relation to the information possibly being libellous/slanderous and that it would be in their best interests not to copy or repeat the allegations.

Comments

Mr Wright has an on-going dispute with the Department. It was inappropriate that he involve his students in his dispute.

Mr Wright’s actions in relation to the assignment could potentially have a negative bearing on the reputation of several senior officers within the Department. The allegations made are clearly unsubstantiated and are possibly defamatory. Mr Turner, as one of the officers implicated in this assignment has raised his concerns about the damage to his reputation.

This incident is possibly a disciplinary matter. I shall shortly be forwarding a briefing minute to the Crown Solicitor’s Office requesting that a Government Investigations Officer be appointed to conduct an investigation into the matter. This will involve obtaining statements from the students involved, as well as Mr Wright and Mr Turner. This evidence will be vital if disciplinary action is to be taken. Mr Turner’s complaint is directly related to this investigation and it is therefore not appropriate that Mr Turner’s complaint be addressed until the outcome of the investigation is known. A draft interim response is attached for your consideration.

Advice From Others

Verbal advice has been obtained from the Crown Solicitor’s Office regarding investigation of the incident.

Recommendation

It is recommended that the Chief Executive forward the attached interim response to Mr Turner.

Contact: Ms Marina Philipps
.... Telephone: 8226 3387

Mariam Daley for
DIRECTOR, HUMAN RESOURCES

1st July 1998

2 of 3

MINUTE forming ENCLOSURE to: DETE 837/98

98/252 402

TO: THE CHIEF EXECUTIVE

RE:. COMPLAINT FROM MR JOHN TURNER RE COMMERCIAL LAW PRINCIPLES AGREEMENT
Purpose
To provide further briefing notes and an appropriate response to Mr Turner.
Background
A previous briefing has been provided on this matter. (attachment 1)

Mr Turner was provided with an interim response advising him that the resolutions he is seeking would not be addressed until the investigation into the matter was completed. (attachment 2)

Mr Turner is seeking:

that Mr Wright provide him with a retraction, apology and an undertaking not to publish further defamatory statements.

that the department provide him with a statement in writing to the effect that he has not engaged in corrupt behaviour and that he has not made any fraudulent misrepresentations to the Minister.

Comment

Mr Turner has verbally on several occasions raised his dissatisfaction about the interim response he has received. He feels that the department should have acted more promptly to the situation and also protected the professional reputation of the senior officers involved.

Mr Turner’s first resolution that he is seeking relates specifically to Mr Wright. It would be most appropriate to address this when the findings of the investigation are available. This investigation is currently in progress. Whilst Mr Wright cannot be compelled to apologise and retract information, an approach could be made to Mr Wright seeking this outcome.

It is of concern that Mr Turner feels that the department did not act promptly and defend the reputation of the officers named in the assignment, including himself.

Institute management did not become aware of the assignment until late May 1998 although the assignment was distributed to students in approximately February 1998. On 15 June 1998, a statement (attachment 3) was provided to the Institute Director, Mr Mike Mulvihill. This statement was prepared by a departmental officer in consultation with the Crown Solicitor’s Office. It was intended that the statement be delivered verbally to all students in the Commercial Law classes. I understand that this responsibility was delegated to Mr Turner.

The purpose of the statement was to present the department’s view and also to provide some protection to students in relation to any civil action that could result (ie defamation). It was felt at the time that any further action could have created unnecessary speculation.

Mr Turner is also seeking a written statement from the Department that he did not engage in corrupt behaviour and that he did not make any fraudulent misrepresentations to the Minister. Departmental records relating to the 1992/93 Real Estate program rationalisation have been viewed by a number of officers within the department in investigating Mr Wright’s complaints and through processing Freedom of Information requests. There has been no evidence found to suggest that Mr Turner’s behaviour was corrupt or that he misrepresented any figures to the Minister.

Advice from other Divisions
The attached letter to Mr Turner has been viewed by the Crown Solicitor’s Office. Their comments are incorporated in the letter.

Recommendations
It is recommended that the Chief Executive sign the attached letter to Mr Turner.

CONTACT OFFICER:         Marina Philipps
  Investigations Officer, Special Investigations Unit
  Tel: 8226 3387

Kevin Richardson
DIRECTOR, EXECUTIVE SERVICES

7/9/98

3 of 3

MINUTE forming ENCLOSURE to: DETE 98/837

TO: THE CHIEF EXECUTIVE

RE: POSSIBLE DISCIPLINARY ACTION - MR MICHAEL WRIGHT

Purpose
That the Chief Executive sign and forward the attached letter to Mr Michael Wright regarding a Commercial Law Principles assignment given to students.

Background
Mr Wright is employed by the Department at Croydon Park and Port Adelaide campuses of Douglas Mawson Institute of TAFE. He is currently on special leave with pay until advice is obtained from his treating psychiatrist regarding appropriate work parameters.

After a significant delay, Mr Wright recently provided his authority to Dr Earle Williams to release the information requested by Mr S Kelton, Director Human Resources, in his letter, a draft of which dated 7 August 1998 had been provided to his solicitors, C B McDonough & Co.

Two briefing minutes have previously been provided on this matter (herein).

The investigation into this matter is now completed. Despite considerable effort being made by the Government Investigations Officer to interview Mr Wright (requests made through his solicitor), this did not occur. After experiencing considerable delays and Mr Wright’s solicitor advising that he expected that Mr Wright would not be prepared to be interviewed, the Government Investigations Officer concluded that there was little point in pursuing an interview with Mr Wright.

Comment
Mr Wright’s actions in handing the assignment to students studying Commercial Law principles seem improper. The assignment contained details of Mr Wright’s allegations against the department and a number of its officers. He states that three senior officers, including Mr John Turner (Educational Manager) made fraudulent misrepresentations to the Minister and that Mr Mike Mulvihill (Institute Director) must have known that they did.

Mr Wright’s conduct seems improper in that his actions were attempting to inform students of, or involve them in, his dispute. His assignment also accused officers of misconduct when this was not an appropriate forum for such accusations.

The attached letter is to advise Mr Wright that there may be sufficient cause for disciplinary action against him for being guilty of improper conduct. Mr Wright has 21 days to respond to the allegations and make any submission he wishes to make.

Under the provisions of the Technical and Further Education Act, the power to find whether there is sufficient cause for disciplinary action and determine an appropriate penalty, lies with the Chief Executive.

Advice from others
Crown Solicitor’s Office

Recommendations
It is recommended that the Chief Executive sign and forward the attached letter to Mr Wright.

CONTACT OFFICER:         Marina Philipps
  Investigations Officer, Special Investigations Unit
  Tel: 8226 3387

Kevin Richardson
DIRECTOR, EXECUTIVE SERVICES

9/11/98

[2000] SADC 82

28 June 2000