Zacek and Australian Postal Corporation
[2007] AATA 1380
•29 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1380
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/993
GENERAL ADMINISTRATIVE DIVISION ) Re SANDRA ZACEK Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date29 May 2007
PlaceMelbourne
Decision 1. In all of the circumstances I am satisfied that the decision made by the respondent with respect to documents 1 – 6 and 8 – 11 inclusive where it exercised a discretion to refuse amendment is affirmed.
2. The decision with respect to Document 7 will be set aside and in substitution the document will be amended by a line being drawn through the relevant words (refer paragraph 57) and a reference made on Document 7 to it being amended by this decision with the respondent’s consent.
3. The application to dismiss these proceedings as being frivolous or vexatious is refused.
..............................................
John Handley
Senior Member
FREEDOM OF INFORMATION – applicant a previous employee – three previous applications to the AAT to obtain documents – application to amend 11 documents – application refused by respondent who annotated the documents – application by respondent to dismiss as frivolous or vexatious – documents concerned historical records and opinions – discussion of permissible basis for amendment and whether incorrect records should be amended – applicant succeeded in amendment of one document – decision to refuse amendment of remaining 10 documents affirmed – application to dismiss as frivolous or vexatious refused
Freedom of Information Act 1982 (Cth) s 4 and s 48 and s 50 and s 50(1) and s 50(3) and s 51 and s 51(1) and s 55(6)(c)
Administrative Appeals Tribunal Act 1975 s 42B
Attorney‑General v Wentworth (1998) 14 NSWLR 481
Freeman v National Australia Bank Ltd [2006] FCAFC 67
Ramsay v Skyring [1999] FCA 907
Re Cox and Department of Defence (1990) 20 ALD 499
Re Zacek and Australian Postal Corporation [2002] AATA 473
Singh v Secretary Department of Employment and Workplace Relations [2007] FCA 90
Theo and Department of Families, Community Services and Indigenous Affairs [2007] FCA 171
Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369
Re Tadensz Slezankiewicz and Australian and Overseas Telecommunications Corporation (AAT 8071, 1 July 1992)
REASONS FOR DECISION
29 May 2007 Mr John Handley, Senior Member 1. The respondent having made a decision to refuse to amend documents pursuant to the Freedom of Information Act 1982 (the Act) applied to dismiss this application as frivolous or vexatious pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the AAT Act). It was submitted that there was no –
(i)Utility in the application proceeding;
(ii)Most of the documents did not relate to personal information about the applicant; and
(iii)It had annotated all of the 11 documents in issue by reference to a 52 page document drafted by the applicant and lodged by her when she initially claimed upon the respondent.
2. The applicant being the person who lodged these proceedings sought amendment of the 11 documents. She also opposed the application for dismissal.
3. At the commencement of the hearing I indicated to Mr Batskos who appeared on behalf of the respondent my concern that the application to dismiss as frivolous and vexatious was premature in the absence of the understanding that I then held that a decision had not been made by the respondent to refuse to amend the 11 documents in issue. That observation was incorrect. I am satisfied, having reviewed the documents in issue that such a decision was made on 30 August 2006 (refer T‑docs p119). The decision made to refuse amendment of the 11 documents was by reason of it being considered inappropriate to tamper with records where the applicant had failed to show that the records were based on incomplete, incorrect, out of date or misleading information or the author was biased or had acted improperly. The decision‑maker then decided to bring finality to this application by applying s 51 of the FOI Act. In effect it was then decided to annotate each of the 11 documents.
4. I am satisfied that the respondent’s application to dismiss as frivolous and vexatious cannot be considered without a determination on whether all or some of the 11 documents, being the record of information,
· contained personal information about the applicant;
· are incomplete, incorrect, out of date or misleading;
· have been used, are being used or are available for use by the agency or Minister for an administrative purpose; and
· should be annotated only by the proper exercise of a discretion to refuse amendment (refer s 48 and s 50 of the Act).
There is an inter‑relationship between s 48 – 51B namely, if amendment of the record of information is refused, there must be annotation. The Act gives a right to seek amendment only. The only compulsion on a record keeper is to annotate.
5. Accordingly I decided that it was appropriate that argument be heard from each party with respect to the above criteria.
6. Usually applications are made to declare proceedings frivolous and vexatious when attempts are made to re‑litigate proceedings that have been reviewed or decided or where, in extreme cases, there is a habitual or persistent or frequent attempt to enliven proceedings that are utterly hopeless or annoying (refer Freeman v National Australia Bank Ltd [2006] FCAFC 67; Ramsay v Skyring [1999] FCA 907; Singh v Secretary Department of Employment and Workplace Relations [2007] FCA 90; Theo and Department of Families, Community Services and Indigenous Affairs [2007] FCA 171).
7. The applicant has applied on three previous occasions but only to obtain documents (V2000/1276, V2004/1053 and V2004/1174). Having obtained them, she now applies to amend them. The decision to refuse to amend has not ever been reviewed by this Tribunal.
8. On balance, and for reasons which will appear later, I think the application to dismiss as frivolous and vexatious was premature in the absence of a review of the decision to refuse amendment. That is to say, in the absence of such a review, the applicant’s case would not ever have been considered. Just as the respondent is entitled to apply for dismissal, the applicant, being the person who initiated these proceedings, is entitled to have her application also considered. In this review each document in issue was considered by reference to the s 48 and s 50 criteria and relevant case law.
9. The applicant did agree at the outset that the 52 page document completed by her and submitted when the initial application to amend was lodged with the respondent was retained by it and is located on each of the three personnel files that it holds concerning her. Additionally, all of the 11 documents in issue have been annotated pursuant to those parts of the 52 page document which referred to the 11 documents. Each document in issue has a separate page annotated which refers to the relevant pages of the 52 page document and persons are directed to that document in order to learn of the annotation. The applicant also acknowledged and agreed that she understood that even if she were successful in having any of the documents amended that the original text as currently existing on the record would not be obliterated (refer s 50(3) of the Act) (subject to the circumstances where obliteration would be permitted to the extent that it is practicable to do so – refer Re Sime and Minister for Immigration and Ethnic Affairs (1995) 21 AAR 369).
background
10. In written reason for decision in application V2000/1276, Senior Member Dwyer decided on 18 June 2002 to adopt part of a Statement of Facts and Contentions lodged by the respondent in those proceedings. That part of the Statement of Facts and Contentions provides in my view a useful summary of the background of the relationship between the applicant and the respondent. It is reproduced as follows (Re Zacek and Australian Postal Corporation [2002] AATA 473 at para 29):
1.1 The applicant is a former employee of the Australian Postal Corporation ("Australia Post"). The applicant was at all material times until December 1996 employed by Australia Post as a Postal Services Officer at the Northcote Plaza Retail Shop of Australia Post or at the Northcote Delivery Centre.
1.2 In November 1995, the applicant complained to Australia Post alleging that she had been subjected to harassment and discrimination by her co-workers at the Northcote Plaza Retail Shop which resulted in her suffering stress and anxiety ("first harassment complaint").
1.3 A Joint management/Union investigation team was formed in December 1995 to investigate the first harassment complaint. In January 1996 the inquiry into the applicant's first harassment complaint found that complaint not proven. However the inquiry found that the majority of other concerns of a non-harassment nature to be in favour of the applicant. The applicant complained about the manner in which the investigation was carried out and about the findings.
1.4 In December 1995 and January 1996 the applicant also made some complaints to the Office of the Minister for Communications and the Arts, Hon Mr Michael Lee in relation to her first harassment complaint, its investigation and the tender processes followed at the Northcote Plaza Retail Shop for the awarding of a cleaning contract for those premises. There was a review conducted of the inquiry. The Deputy General Manager, Victoria and Tasmania, of Australia Post upheld the findings of the inquiry after that review of the inquiry but found even further instances of inappropriate management practices.
1.5 Between late 1995 and early May 1996 the applicant was absent from work. After an initial decision by Australia Post to refuse compensation payments, that decision was overturned on internal review and the applicant received workers' compensation payments for the full period (including back payments).
1.6 In early May 1996 the applicant returned to work at the Northcote Delivery Centre, not the Northcote Plaza Retail Shop. Shortly after commencing the applicant made a complaint of harassment against three persons at the Northcote Delivery Centre. By a written formal complaint dated 29 May 1996 the matter was referred to the Australia Post State Discrimination Review Committee ("second harassment complaint").
1.7 A joint management/Union inquiry was conducted on behalf of the State Discrimination Review Committee. In July 1996 the State Discrimination Review Committee found the allegations of harassment not substantiated.
1.8 In about October 1996 the applicant lodged with the Equal Opportunity Commission of Victoria (as agent for the Human Rights and Equal Opportunity Commission) a complaint alleging sex discrimination in employment in relation to both the first and second harassment complaints referred to above.
1.9 In December 1996 the applicant resigned from her employment with Australia Post.
1.10 In April 1998 the Equal Opportunity Commission formed the opinion that the applicant's complaint lacked substance and decided not to continue to inquire into the complaint. The applicant sought no review of that decision.
11. Additionally, Senior Member Dwyer also recorded the following:
30. That appears to be a fair summary of the events leading up to the lodging by Mrs Zacek of the requests under the Act which resulted in the decisions under review in these proceedings. It does however seem appropriate to add that prior to November 1995 Mrs Zacek had been an employee or agent of Australia Post for some years, and had worked in other Post Offices. So far as the evidence reveals her work had been satisfactory and she had not had any personal conflict with other managers. In fact, as the January 1996 report (A1 attachment E) reveals, "[T]here has been no inference whatsoever by anyone that her honesty and good record is in dispute. Rather, that she is held in high regard as a very good and effective counter officer".
the documents in issue
12. The 52 page document relied upon by the applicant as a basis for her application to amend is found at pages 123/174 of the T‑documents. The 11 documents in issue are located between pages 176/267 of the T‑documents. Immediately preceding each document (on a separate page) is the annotation made by the respondent to that document. Each annotation refers to the 52 page document and to the relevant pages within it applicable to the document annotated.
preliminary
13.In these reasons, a number of issues will emerge repeatedly, namely
i) Personal information – (refer s 4 of the Act).
personal information means information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
ii)an opinion cannot be amended except in the limited circumstances prescribed by s 55(6)(c) namely
(6)The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1)(g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
. . .
(c)the amendment relates to a record of an opinion to which neither of the following applies;
(i) the opinion was based on a mistake of fact;
(ii) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
iii)an administrative purpose is not defined by the Act but for the purposes of this decision I adopt the interpretation in Re Tadensz Slezankiewicz and Australian and Overseas Telecommunications Corporation (AAT 8071, 1 July 1992) at paragraph 46:
In my view "administrative purpose" in section 48 means a purpose that has to do with the management of the agency in whose possession a document is held. That management extends at least to all its internal activities, including financial control and activities of an operational nature as well as the employment and management of staff.
iv)the significance of distinguishing between the record of information and information. It is only the record of information that is capable of amendment and then by a number of principles from Re Cox and Department of Defence (1990) 20 ALD 499 which I will adopt.
v)Amendment of documents is confined to altering or adding to them in the manner and circumstance recorded in s 50(2)(a) and (b). Some of the amendments sought by the applicant are defamatory of other persons and are beyond the ambit of that section. (s 51 permits a statement to be added to the record but it prohibits language which is defamatory).
document 1
14. This document is found at pages 176/179 inclusive. It is a letter completed by Mr De Sensi the Postal Manager at the Northcote Plaza Post Shop addressed to Mr Semmler the Area Manager of the respondent’s Preston Regional Operations. The letter is dated 20 November 1995. It appears to be the response from Mr De Sensi to a complaint lodged by the applicant alleging harassment and discrimination at the Northcote Plaza Post Shop.
15. The applicant seeks amendment to a number of parts of the letter. The first is a request to amend, by way of deletion, handwritten notes in the margins of the letter. The handwritten notes are Did Sandra say yes; Is this true? Was this done?; Was it true?; Was Sandra on S/L or is it being used as an excuse for not training her?
16. In her 52 page document the applicant contended that the handwritten comments were not made by her and should be corrected. At the hearing it was alleged that the person who wrote those comments was biased and the comments contained or implied incorrect information. I am of the view that the handwritten comments are not subject to amendment. The comments are not in the nature of personal information of the applicant, there is nothing which points to any of them being incomplete, incorrect, out of date or misleading nor is there anything which would point to those comments having been used or currently being used or available for use for an administrative purpose. Additionally I am not satisfied that the applicant wrote those comments.
17. The remaining objections to document 1 concern certain passages as follows:
Page 179 I was also unaware that Sandra was suffering from any undue stress or physical pain until I read her formal complaint to you.
Page 177 Until I read Sandra’s letter to you I was unaware that she had any problems or of the situation in the toilet. On that day I was at a PM’s meeting held by yourself at the Area office. The next day Sandra was on sick leave so I did not speak to her. On the following day I had a RDO and again did not speak to her.
Page 177 Sandra insists on balancing at night, being between 5.00pm and 5.30pm.
Page 178 Sandra, like the other staff, may have to go to an early lunch, as no one likes the early lunch.
Page 177 There was no and is no so called clique that Sandra states.
Page 178 If Sandra thinks that the removal of John Kelly from Northcote was unjust and unfair, that is her opinion. However, Sandra does not know the full extent of the situation.
Page 179 Sandra has never approached me to tell me that she was stressed or in pain.
Page 179 I treat all my staff the same with no special treatment for any of them, even if they have an outside friendship with them [sic]. I also have never harassed, insulted, discriminated or abused any staff member, not only as a supervisor but even as a fellow worker.
18. A combination of the contentions found within the 52 page document and the applicant’s evidence at the hearing, point to a continuing unhappiness by the applicant towards Mr De Sensi. She has alleged bias, fraud and manipulation of her records by him. She asserts that he was aware of her illness and the complaints that she made to him. She contended that his comments as found within the passages of the letter portray her as being disrespectful and failing to obey Australia Post procedures. It was also contended that his response was crafted in order to discredit her or her character – she being a person who had lodged a complaint against him.
19. The suggested amendments sought by the applicant are found at pages 131/133 of her 52 page document.
20. On balance I am satisfied that the discretion against amendment of the records was appropriate. The comments within document 1 to which the applicant takes objection have largely been the subject of inquiry by other procedures within Australia Post. Some of the comments referred to an expression of Mr De Sensi’s state of mind or his knowledge, some of which has apparently been obtained from records. The applicant has also sought amendment by the use of language which is defamatory and therefore inappropriate in the context of amendment to records. I do not share the applicant’s view that there is any attack upon her integrity in so far as she sought amendment with respect to the time that she balanced cash receipts. The applicant submitted in her 52 page document that she balanced between 5.00 and 5.30pm because she was directed to do so by Mr Kelly. If that explanation is correct it is an accurate comment. The applicant’s quarrel with the reference at page 178 to having early lunches and being members of a clique are also not subject to amendment because the applicant – by way of the submitted amendment – admitted that lunches were taken earlier than other staff members who were in the clique. The comment with respect to the removal of Mr Kelly again amounts to no more than an opinion held by Mr De Sensi and his qualification to express it by reason of his position as a manager and as evident by his possession – apparently – of other information namely; Sandra does not know the full extent of the situation.
21. The remainder of the applicant’s contentions to document 1 were in the nature of her submitting that she should be entitled to amend it but without specific reference to parts of it. For example, an amendment was sought namely; The complete not misleading and up to date information is that staff at Northcote Plaza Post Shop was [sic] not permitted to alter balances. And I did not receive Tony De Sensi’s response several days later it was weeks later (p138). In evidence the applicant said that Mr De Sensi referred in document 1 to a shortfall of $100 on one of his RDO’s which was rectified but, unknown to him, an unprocessed phone account was responsible for the shortfall, that she was approached and explained that she had a surplus of approximately $100. She was asked to provide that surplus to another employee to achieve reconciliation of balances. The applicant alleged that Mr De Sensi had contravened Australia Post policy with respect to accounting, that she was prohibited by him from balancing her accounts and was directed to pass over surplus monies to another employee. The tenure of this evidence was that the applicant believed that her integrity was under attack and had been deliberately conceived by Mr De Sensi to protect himself (Trans. p20).
22. The amendment sought is inappropriate because no specific reference in document 1 was identified as being incomplete, incorrect, out of date or misleading and there is therefore nothing which is capable of amendment. But to the extent that the applicant believes that there was an attack upon her integrity or her honesty, by the content of document 1, it is a view which is not held by me (nor was it held by Senior Member Dwyer – refer earlier). The report of an enquiry into the harassment complaint made a similar finding (refer Document 4 – later – at p193). In so far as these parts of the letter are concerned, it is my view that no fair minded person reading document 1 would draw any conclusion that the applicant’s honesty or integrity was in issue. The suggested amendment also remains inappropriate – not only because it does not specifically refer to document 1 ‑ but rather it attempts to portray inferences which cannot be reasonably drawn, those inferences are not in the nature of personal information and any criticism of Australia Post’s accounting policy certainly does not amount to personal information of the applicant which is capable of amendment within her records.
23. The remainder of document 1 seeks to have information attached to the applicant’s records which were understood to be a request for notation (which the respondent did make) but which the applicant said at the hearing was in fact a request by her for amendment.
24. The annotation/amendment was to have the following words placed on her record namely:
The correct complete not misleading and up to date information to be attached to Tony De Sensi’s letter dated 21/11/95 to John Semmler is that I was present at work all day on the 4th of September 1995. That Tony De Sensi had without my knowledge or consent did knowingly alter my attendance records to have documentary evidence for himself. His actions caused fabricated incorrect, incomplete, misleading and out of date information to be entered into my records. The complete not misleading and up to date information is I was at work on the 5th of September 1995 until between 3.00 and 4.00pm. On the 6th of September 1995 I was at work all day. On the 7th of September 1995 I was at work until between 3.00 and 4.00pm.
That annotation/amendment appears to relate to the circumstances described in paragraph 4 of the letter at p177. It is defamatory in nature and has been the subject of review in other proceedings within Australia Post. It refers to attendance records at the workplace almost 12 years ago. In my view the annotation/amendment is inappropriate for the above reasons and for the reasons at paragraph 13 earlier. I note that the respondent in any event referred to the above words by way of annotation on the applicant’s records. I am of the view that it would not be appropriate to exercise the discretion available under s 50 to amend the record. The contents of this proposed annotation/amendment are also referred to later in these reasons (refer Documents 2, 3, 4 and 5).
document 2
25. This document is found at page 181 of the T‑documents. It is a memorandum of 16 January 1996 issued within Australia Post by Dennis Rafferty to Deborah Dodgson. A copy of it was to be forwarded to John Minnis and Sharon Radau. The memorandum is described as being in reference to the applicant, the Northcote Plaza Post Shop and a Ministerial representation. The memorandum commences with a reference to a complaint lodged by the applicant claiming that she was subjected to harassments, insults, discrimination and abuse by management staff. The memorandum refers to investigations of the complaint and interviews of 14 persons. The part of the document put in issue by the applicant is the second last sentence namely; During this time regular contact from enquiry team to Zacek, (and Zacek to inquiry team), on progress and updates.
26. The respondent did not understand the applicant to be seeking an amendment of her records but rather as an annotation on her records. This is because the applicant sought (p140) the following:
The complete not misleading and up to date information I am requesting be placed on this Australia Post memorandum is that Dennis Rafferty and John Minnis did not initiate any regular contact with me during the inquiry. The contact was made by me in an effort to be provided with the statistical data.
The respondent in fact did make that annotation (p180).
27. At the hearing it was submitted by the respondent that the applicant sought an annotation and not an amendment. It was understood that the applicant sought to have her records annotated because of alleged bias during the investigation to her harassment complaint. The annotation was beyond the scope of this review because it did not allege any inaccuracy in the record. The applicant submitted during the hearing that the inquiry team did not keep in contact with me, I had to actually contact them (Trans. p22). It was also alleged that Mr Rafferty had refused to give her statistical data and his assertion that he was maintaining contact was to avoid providing the data.
28. The attention sought to this document by the applicant does not have merit. It clearly is in the nature of an annotation and a request for amendment was not made. In any event there would be nothing capable of amendment. The sentence in dispute says no more than regular contact was made by the inquiry team with the applicant. That is not in issue. The applicant seeks to have it noted that contact occurred by her initiation. The words in issue do not imply that contact was initiated by the persons Raffety or Minnis as the applicant would suggest by the nature of her request for annotation. Even if the annotation were found to be a request for amendment, I would decline it. The words of this sentence are not incomplete, incorrect, out of date or misleading, nor do they have any administrative purpose.
document 3
29. This document is found at pages 184/187. The annotation to it is found at page 183.
30. Document 3 is a determination made on 22 March 1996 under the Safety, Rehabilitation and Compensation Act 1988. The decision then made by a claims manager of the respondent was to deny liability to pay compensation with respect to a claim for stress/anxiety sustained on 11 December 1995.
31. The part of the document offending the applicant is found in the first sentence of the third paragraph on page 185 namely; A major concern you raised was an incident on 4/9/95 which resulted in a bowel spasm. The applicant sought amendment because she asserted that the bowel spasm occurred on the afternoon of 5 September 1995.
32. The amendment sought by the applicant (p142) is The correct, complete, not misleading and up to date information is that I was at work all day on the 4th of September 1995, that I was at work on the 5th of September until between 3.00 and 4.00pm. That I was denied compensation on fabricated information that was provided by my postal manager after my attendance records had been manipulated.
33. The applicant seeks an amendment which would include references to fabricated information and records having been manipulated. The use of that language is defamatory and cannot be permitted. Apparently there is no dispute that the applicant was subject to an incident at work on either 4 or 5 September 1995. That episode occurred almost 12 years ago and the applicant has not been an employee for almost 10 years. It has no continuing administrative purpose. In evidence the applicant asserted that the manipulation of her attendance records infected the decision‑making process with respect to her claim for compensation. It was asserted that compensation legislation is there to protect the general public and the previous manager interfered with the legislation of compensation which is public interest. I can discern nothing from the determination constituting Document 3 which has influenced the decision‑maker to reject liability by reference to whether the episode of bowel spasm occurred on either 4 or 5 September 1995. Protection of the general public or the public interest in so far as it concerns the operation of an entitlement under the Safety, Rehabilitation and Compensation Act 1988, is not personal information of the applicant. The respondent in my view acted appropriately by refusing to exercise its discretion under s 50 of the Act to permit amendment. Annotation to the records has been completed as the respondent was obliged pursuant to s 51 of the Act.
34. The remaining issues under document 3 are the subject of dispute under document 8 and will be referred to later in these reasons.
document 4
35. It was learnt at the hearing that an error had been made in the compilation of the documents believed to be in dispute. At pages 190/200 inclusive is a document described as document 3A. It was agreed at the hearing that that document should be described as document 4. It is the same document described as document 4 in the 52 page document completed by the applicant. Her contentions with respect to that document commence at pages 142. The document described as document 4 commencing at page 202 has been inserted in error and is not relevant to these proceedings.
36. Document 4 is dated 16 January 1996 and is the report and findings of an inquiry into the first harassment complaint lodged by the applicant. Again the applicant seeks an amendment to have the date 5 September 1995 recorded as the date of a bowel spasm rather than 4 September 1995.
37. The members of the enquiry acknowledged that There appears to be some conflict in regard to the bowel spasm incident and with respect to the date of it being reported to Mr De Sensi (p193). The report refers to the episode having occurred on 4 September 1995, that the applicant was absent from work on 5 September 1995 and it was reported to Mr De Sensi on 7 September 1995. The applicant seeks to correct those findings by way of amendment and have it recorded that the spasm occurred on 5 September 1995. Again it is alleged that employment records were manipulated (p144).
38. The respondent contended that the amendments were trivial, of no significance and amendment was not warranted. Additionally it was submitted that document 4 is an historical record which would be inappropriate to amend.
39. I am of the view that document 4 should not be amended. The document is a report of an inquiry. The inquiry made certain findings. The applicant is obviously unhappy with the findings made but rarely where there is conflicting versions of events will all affected persons be content with findings of fact that are made. It is important to note under s 48 and s 50 of the Act that it is the record of information that may be amended. In Re Cox and Department of Defence (1990) 20 ALD 499 Deputy President Todd decided (paragraph 5) that even if information was incomplete, incorrect, out of date or misleading, it was more important to determine whether the record of that information was a complete or correct record. When regard is had to s 50(1) of the Act, Deputy President Todd decided that there were a number of issues that should be considered namely:
6 In making the s 50(1) decision, the agency or on review the tribunal should also have regard to:
(a) the character of the record, in particular whether it purports to be an objective recording of purely factual material or whether it merely purports to be the record of an opinion/report of one person;
(b) whether the record serves a continuing purpose;
(c) whether retention of the record in unamended form may serve a historic purpose;
(d) whether the record is dated;
(e) whether amendment is being sought as a de facto means of reviewing another administrative decision;
(f) the extent to which access to the record is restricted;
(g) whether creation of the record or any of its contents was induced by malice.
(h) whether the record is part of a group of records and, if so, whether the other records modify the impact of the record in dispute.
40. I am not satisfied that it would be appropriate to exercise the discretion to amend. Indeed document 4, being an historical record should not be altered. The record does not serve any continuing administrative purpose. It is dated, there is nothing to suggest that it was created or induced by malice and the findings made are consistent with findings made elsewhere within Australia Post. The respondent has agreed to annotate the record and it is found at page 189.
document 5
41. This document is entitled Report On Review Of Complaints By S Zacek Northcote Retail Shop and is found at pages 206 ‑ 216. It was completed by Mr Graham Flynn the Deputy General Manager of Australia Post on 23 April 1996. In the context of the applicant’s previous relationship with the respondent, it is, in my view, a significant document. It is a record of a review initiated by Mr Flynn of the findings made by the persons who enquired into the first harassment complaint (Document 4). Mr Flynn is an officer superior to those that completed that enquiry. The objection taken by the applicant to part of document 5 is the first sentence in the fourth paragraph at page 206 namely:
In a meeting I had with Mrs Zacek on 7 March she made it clear that she was incensed that, in the context that her complaints were not found to be proven, she was recommended for counselling (or as she put it, psychological help), when she needed no such help.
The reaction manifested by that language appears to arise out of the fourth recommendation made by the enquiry team (p197) where it was recommended that the applicant be offered appropriate counselling services at Australia Post’s expense to enable her to cope with her situation and assist in her return to work.
42. The objection taken by the applicant to the comments within the report of Mr Flynn were that she did not attend the meeting with him in a manner which was incensed but rather she acted with calmness and dignity. An amendment accordingly is sought to the report of Mr Flynn.
43. The respondent objects because the language used by Mr Flynn amounts to an opinion held by him as the author of the document. Additionally the document is an historical record and cannot be rewritten.
44. The applicant also contended that the report should in broad terms be amended to the extent that the report on review was not thorough it has been confirmed that no other staff members were questioned. I did tell Tony De Sensi that I had a bowel spasm the next day (p146). The applicant said that the report was discolouring and discrediting her character and the personal information was incorrect. The respondent contended on this proposal that it did not relate to personal information concerning the applicant but rather was a comment directed towards the process of review. In the circumstances the amendment was not capable of being sustained under s 48 or s 50 of the Act.
45. I interpret the words used by Mr Flynn as him expressing an opinion that the applicant was incensed as to the comments that were made recommending counselling. I do not interpret his words to mean that the applicant was incensed after meeting with Mr Flynn (as she apparently interprets his words). Even if the applicant were incensed, Mr Flynn is entitled to record it. If she was not incensed but he interpreted her demeanour and language to be of that character, he is also entitled to record it. The respondent was correct in not exercising its discretion to amend this record on this issue. Mr Flynn expressed an opinion which does not meet the circumstances of s 55(6)(c) of the Act permitting an amendment.
46. The remaining issue in dispute was the contention that the record should be amended because the review was not thorough and staff members were not questioned. I agree with the respondent that this falls into the area of comment or opinion about the review process or practices within Australia Post when conducting reviews. It does not refer to the personal information of the applicant that is incomplete, incorrect, out of date or misleading. Accordingly this part of the proposed amendment is not valid and is beyond the ambit of s 48 and s 50 of the Act.
47. However I cannot leave consideration of this document without making an observation which would hopefully give some satisfaction to the applicant, and that is, the members of the review who published their report on 16 January 1996 (document 4) upon further enquiry, as a result of the initiation of Mr Flynn, became satisfied that the bowel spasm did in fact occur on 5 September 1995. Those persons also became satisfied, having interviewed Mr De Sensi that he had altered records and he was cautioned under a Code of Conduct procedure existing within Australia Post. Despite those findings – and a submission was not made on this issue – I am not satisfied that it would lend weight or credibility to the assertions made by the applicant over documents previously reviewed that the relevant dates should be amended. Those earlier findings that the spasm occurred on 4 September 1995 do form part of the historical record and give rise to – indeed validity – to the review initiated by Mr Flynn. This appears to fall within the scope of the review undertaken by Deputy President Todd in Re Cox where he was satisfied that subsequent records demonstrated that earlier medical records held by the respondent were in fact incomplete, incorrect, out of date or misleading. It was the view of the Tribunal that the later records should not be substituted or cause the earlier documents to be set aside. That decision was reached because the Tribunal was satisfied that the subsequent documents became part of the story (the record) of the handling of the complainant’s claims by government agencies. The Tribunal decided that it would not be appropriate to alter the records or remove them but rather add a notation. That is what has occurred in this case. It is to be hoped that the applicant will obtain some measure of reassurance that Mr Flynn was satisfied that the subsequent review by the original review members concluded that the information they obtained caused them to be satisfied that their initial findings were incorrect and that the spasm did occur on 5 September 1995. The record of information kept by Australia Post therefore does record, as the applicant would prefer, that the spasm did occur on 5 September 1995.
document 6
48. This document is a letter of 24 May 1996 written by Ms Puri, a compensation claims manager with Australia Post, to Dr G Mendleson, a psychiatrist to whom the applicant was referred for medico-legal opinion. It is found at pages 218/238 of the T‑documents. In her 52 page document the applicant does not specifically contend whether part or the whole of that letter offends her however she requests that a document be attached to her files which, despite it being understood by Australia Post that she was seeking an annotation, she submitted at the hearing that she was seeking an amendment.
49. Mr Batskos understood that paragraph 3 only of that letter was in issue. He expressed that belief during the hearing. The applicant did not demur.
50. Paragraph 3 of the letter at page 218 is reproduced in the following terms:
While working at the Northcote Plaza Post Office, Mrs Zacek lodged a Harassment Claim with Mr Warren Hahnel, Regional Manager, Retail Network, Australia Post alleging harassment by several people at the Post Office. Mr Hahnel, in conjunction with the Union, nominated two representatives (Mr John Minnis and Mr Dennis Rafferty) from Australia Post to investigate Mrs Zacek’s harassment claim. The Investigation Officers conducted interviews with the Postal Manager (Mr T. DeSensi), Area Manager Preston (Mr John Semmler) and almost all employees of the Northcote Plaza Post Office. They completed their inquiry and submitted their findings to the Regional Manager on 16/1/1996. To be brief, except for one allegation, the others were found not to be proven. Mrs Zacek, not satisfied with the outcome of the Inquiry, approached Mr Michael Lee (Minister in the Labour Government), indicating that the Inquiry Team’s conclusions were biased and incomplete. The then Minister’s Office wrote to Australia Post, Headquarters, with the request the matter be co-ordinated by a Senior Officer at the State level. The Deputy General Manager, Retail and Delivery, Mr Graham Flynn was appointed to review the original inquiry.
51. The amendment sought by the applicant is as follows (p155):
The correct complete not misleading and up to date information that I am requesting to be attached to this document is that the letter dated 24 May 1996 that A.Puri sent to Dr. G Mendelson has information that is incorrect incomplete misleading and out of date which is,
The investigation was not in conjunction with the CEPU (union). The investigative team was biased and incomplete.
They did find other complaints to be proven. That my records were manipulated to make it appear that I was absent from work when I was not and that my performance records were manipulated to make it appear that for the most part I was not in the busiest corner or performing my duties.
52. The respondent contended that the annotation sought by the applicant has in fact been made and appears at page 217. Additionally it was submitted that paragraph 3 does not refer to personal information of the applicant but rather it provides an historical summary of an investigation process. There is no reference at all to the CEPU and whether or not the investigative team was biased.
53. The applicant contended that the record should be amended because the investigation was not conducted in conjunction with the CEPU, the findings made were biased and were incomplete and some complaints were found to have been proved. Additionally it was submitted that records were manipulated and that she had been absent from an area within the post office – where she had in fact been working – and which was the busiest area. The applicant also took objection to a reference to her approaching a Member of Parliament, to the absence of personal knowledge by the author of the letter to the particular workplace circumstances and to the conduct of Mr De Sensi.
54. I am of the view that even if the request is in the nature of an amendment that the discretion should not be exercised under s 50 of the Act. The document is a letter forwarded to a medico-legal psychiatrist engaged by the respondent to provide a report with respect to a compensation claim which had been initiated by the applicant. Paragraph 3 of the letter provides an historical background to the claim being made and the circumstances upon which the applicant relied or alleged gave rise to her claimed injuries. I agree with the submission of the respondent that paragraph 3 does not concern the personal information of the applicant and certainly the third paragraph is no more than a history of the harassment claim having been made and the subsequent inquiries. Paragraph 3 is part of the record of information kept by the respondent. From what I have read and heard from the documents lodged, it appears to be an accurate summary of events to that date. It should not be amended. The applicant’s concerns have been annotated.
document 7
55. This document is a file note completed by Ms Puri on 19 June 1996. It is found at pages 240/241. It was obviously completed after the report from Dr Mendelson was received. Ms Puri recommended that entitlements to compensation should be ceased.
56. The applicant takes objection to some words recorded by Ms Puri namely:
Page 240, paragraph 2. Such personality traits are termed Paranoid.
Page 241, paragraph 3. c. (in other words, she is paranoid).
57. This matter can be dealt with rapidly. The applicant applied to remove those references. After some discussion during the hearing the respondent agreed that those references should be removed by way of amendment. They are inconsistent with the opinion expressed by Dr Mendelson, indeed, he specifically found in my opinion that diagnosis (paranoia) is not warranted in relation to Mrs Zacek (p266). The decision that I will ultimately find, in so far as Document 7 is concerned, that it is to be amended by a line being drawn through the above words and with a reference made on this record that it has been amended, with the consent of the respondent, by a decision made by this Tribunal (on the date that this decision will be delivered).
58. The applicant’s contentions in her 52 page document with respect to document 7 also refer to similar criticisms that are to be found at Document 11. For the moment those criticisms will be referred to later when Document 11 is considered.
document 8
59. This is a memorandum of 16 July 1996 completed by Ms Puri and addressed to a number of officers with the respondent. It is found at page 243 – 244. The letter is a request to have the applicant return to work in a different position, apparently by reason of comments made by Drs Horsley and Mendelson who examined in the context of the compensation proceedings.
60. The applicant requests that part of the second last paragraph on page 243 be removed. The relevant sentence within that paragraph is The issue of handling cash has been a problem of the past arising with De Sensi and continuing with Darren Lewis. The applicant applies to have the words and continuing with Darren Lewis removed.
61. The applicant contends that the words that she seeks to have removed refer to her by implication because the memorandum of itself is referrable to her. Additionally she contended that the word with is a reference to her namely, there is a perception by Australia Post that any problem associated with the handling of cash concerned the applicant with Darren Lewis.
62. The respondent contends that the Act does not permit removal of records in whole or part. Additionally it was submitted that the alleged offending words are not referrable to the applicant either actually or by implication and the words are not in the nature of personal information.
63. Whilst there are limited circumstances where a record can, in whole or part be removed, (obliterated refer s 50(3)), I agree with the respondent’s submissions. The above contentions were the subject of some debate during the hearing. I indicated to the applicant that I did not infer from those words that they were referrable to her (that is, it was not personal information) and I maintain that view. I am of the view that the offending comment made by the author of the memorandum was the expression of an opinion that there was a problem handling cash but that problem existed between the respondent and De Sensi and between the respondent and Lewis. I acknowledge that earlier in the memorandum the author recommends that a return to work should not involve dealing with cash. Additionally it was recommended that the return to work should be into an administrative position. Having regard to the entirety of the memorandum I interpret that recommendation to be that the applicant should not be exposed to work which involves any stressful type position and it was thought that handling of cash involved such a stress.
64. I note the respondent has annotated that document with the concerns expressed by the applicant in her 52 page document (refer p160 and p242). I reaffirm the opinion expressed by me earlier in these reasons that I am not of the view nor do the documents in issue in these proceedings suggest that there is any basis for an attack on the credibility or honesty of the applicant with respect to the handling of cash. The respondent’s submissions with respect to this document must be upheld.
document 9
65. This document is a report of an investigation into another harassment complaint lodged by the applicant on 29 May 1996 after she returned to work at the Northcote Delivery Centre. It is found at page 246 – 254. The persons conducting the investigation and being the authors of the report were Ms Jane Layton, an employee of Australia Post at the Braeside Delivery Centre (a representative of the applicant’s union) and Mr Cliff Michael a Senior Human Resources Consultant with the State Office of the respondent (who represented Australia Post management). The investigation concerned allegations made by the applicant against the Manager of the Northcote Plaza Retail Shop, the Manager of the Northcote Delivery Centre and the Manager of the Preston Retail Area.
66. The applicant requested that there be an attachment to her files but as was learnt at the hearing when the word attachment or attached was used, the applicant was in fact requesting amendment. She sought an amendment to her records because she contended that comments made within the investigation report were misleading. The complaint with respect to Document 9 were conclusions made by Ms Layton and Mr Michael (p254) that she was more susceptible to perceived problems real or imagined; that the applicant came across as having a strong rigid personality who was not conciliatory but rather retributive; and Mrs Zacek obviously has a deep seated resentment towards Australia Post. Additionally it was alleged – but I can find no reference to these words specifically or by implication in the investigation report – that the complaint was not investigated thoroughly or fairly.
67. In her 52 page document the applicant denied that she had a deep seated resentment towards Australia Post, that she was not retributive and she did not have a rigid personality. Additionally she said that she did not imagine problems and complaints that she made were correct, complete and not misleading. In evidence she said that the comments with respect to her personality were in the nature of medical opinion yet the authors of the report were not medically qualified. She asserted that the comments were in the nature of personal information.
68. The respondent submitted that the request sought by the applicant was clearly in the nature of an annotation which had been made. Additionally the report concerned the findings, observations and recommendations made following an investigation into the applicant’s complaint.
69. The applicant contended that the comments put in issue by her with respect to this document were a character assassination (Trans. p45). I respectfully disagree.
70. The investigation report is an historical document, prepared following an investigation into a complaint made by the applicant. I am of the view that the report represents a balanced conclusion into the investigations that were conducted and of which a number of persons were interviewed. I am not of the view that the comments expressed by the investigators are in the nature of medical diagnosis and having regard to the positions held by the investigators, I am of the view that they are capable and qualified to express opinions with respect to the applicant’s personality as it would have been demonstrated to them during the investigation process. Indeed I note from the second paragraph on page 254 that the investigators qualified their opinions with respect to the susceptibility of the applicant to perceive problems that may have arisen out of perfectly plausible explanations to Mrs Zacek’s concerns in a context of some apprehension about returning to work. The investigators expressed the view that the applicant had a strong and rigid personality, who was not conciliatory and who had a deep seated resentment towards Australia Post. They were entitled to form those opinions. They do not satisfy the basis for amendment under s 55(6)(c) of the Act. The applicant obviously disagrees but in the nature of any investigation which requires some finding of fact where there are two or more disputants, it is more than likely that an imposed decision will not satisfy the needs of all disputants. The investigators represented the employer and the union. Having read the investigation report I am not of the view that the investigation was not thorough nor am I of the view that it was not fair.
71. On balance and for the above reasons I am not satisfied that the record of information should be amended as requested.
document 10
72. This document is found at page 256 and is a memorandum of 10 December 1996 from Mr Semmler to other Australia Post officers. It refers to the ending of the applicant’s employment with the respondent and requests one of the officers complete a Separation Certificate and to have it endorsed with the words unsuitable for re‑employment.
73. The applicant contends that the respondent had no just cause for the request that my records be endorsed that I was unsuitable for re‑employment and there was no Australia Post procedure in place that would have permitted my Separation Certificate to be endorsed with the request that I was unsuitable for re‑employment. I was an honest and diligent employee of Australia Post and there was no just cause for the request that my Separation Certificate be endorsed that I was unsuitable for re‑employment (p168).
74. The applicant’s request does not plead amendment or annotation but it is assumed for the purposes of this review that she seeks to have her records amended by the removal of the offending words.
75. The author of the document is entitled to have the Separation Certificate endorsed with the words offending the applicant. As the employer’s representative he would be charged with that authority. He is also entitled to form and express the view that a person is unsuitable for re‑employment. I am not of the view that the offending words are incorrect, incomplete, out of date or misleading within the meaning of s 48 and s 50 of the Act. The applicable document is in the nature of an historical record and for the reasons expressed earlier I am not of the view that it should be amended. It would not satisfy amendment permitted by s 50(2) of the Act nor the basis for removal pursuant to s 50(3).
76. The respondent has annotated the applicant’s concerns to this document and they are found at page 255.
document 11
77. This is a medical report completed by Dr Mendelson following his examination of the applicant at the request of the respondent in the context of her compensation proceedings. Dr Mendelson is a psychiatrist. Mrs Zacek takes offence at the words in the second last paragraph on page 266 namely,
(i)I have formed the impression that she is a person who is hypersensitive to what she perceives as criticism, and that she tends to misinterpret the actions of others as being directed against her; and
(ii)the words appearing in the second paragraph on page 267 namely; it seems that it is her sense of grievance and resentment towards Australia Post that is responsible for her negative attitude towards a return to work.
78. The request made by the applicant does not plead amendment but rather requests that there be an annotation to the report that she did not have a sense of resentment towards Australia Post, that she was not hypersensitive, that she did not misinterpret the actions of others, that she did not have a sense of grievance towards Australia Post and that she did have legitimate complaints (p174). For reasons given earlier, this will be treated as an application to amend.
79. The applicant alleged in evidence that Dr Mendelson was influenced by letters that he had received from Ms Puri and from other statements provided to him by her from Australia Post personnel (refer Document 6 earlier). Those documents are referred to on the first page of his report. She alleged that the opinions expressed by him were inaccurate and misleading and were influenced by the comments within the documents that he had received which were equally inaccurate and misleading.
80. The respondent asserted that the report of Dr Mendelson followed an examination of the applicant. It was asserted that the opinions expressed by him were within his professional competence, that the report constituted an historical record and should not be subject to amendment. It is noted that an annotation to the report as requested by the applicant is found at page 257.
81. On balance I am of the view that the submissions put by the respondent are sound and are to be preferred. Dr Mendelson completed a report following an examination of the applicant where he then expressed his opinion within his professional qualifications. He was obliged to do so. He was appointed by the respondent for that purpose. He recorded on page 9 that his impression of the applicant being a hypersensitive person arose out of his examination (refer p266 second last paragraph). On page 267 he does refer to the documented information that was made available to him but he also refers to the history that was given to him by the applicant in forming his opinion as to her sense of grievance and resentment towards Australia Post. Having made this finding, he was also entitled to the opinion that she had a negative attitude towards returning to work.
82. Again, the decision in Re Cox applies. That is to say, even if the opinions of Dr Mendelson were incomplete, incorrect, out of date or misleading – and I do not make those findings – it would not be appropriate to alter the document. It does form part of the historical record. I also note that the report was made more than 10 years ago, it does not serve any continuing purpose, it is not a report in my view induced or created by malice and is a document which should remain unamended. It does not satisfy the permissible basis for amendment under s 55(6)(c).
whether these proceedings should be dismissed as being frivolous or vexatious
83. In Attorney‑General v Wentworth (1998) 14 NSWLR 481 at 491 (Wentworth) the Court decided:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
84. The respondent applied to have these proceedings declared frivolous or vexatious. Its reasons for making that application may be briefly summarised as follows:
· All of the requests made over the 11 documents had been the subject of annotation by reference to the applicant’s 52 page document.
· The applicant applied for amendment of six documents only. The remaining five documents were sought to be annotated only.
· The amendments sought were of no or are devoid of utility.
· There is no practical effect or benefit or outcome to the applicant in proceeding to seek amendment.
· The applicant’s motive in bringing these proceedings should be examined because she knew six years ago of the existence of some of these documents (refer p62 of T‑documents) and some were also made available to her four years ago after the decision made by Senior Member Dwyer. Her reasons for not seeking amendment at an earlier date remains unexplained.
· The cost to the respondent and the disruption to its day to day business in having to process this application, it being the fourth occasion that the applicant has applied to the Tribunal.
· The documents sought to be amended concern events which occurred more than 12 years ago and they relate largely if not entirely to the circumstances of the employment which ceased more than 10 years ago.
85. The applicant’s basis for seeking amendment may be briefly summarised as follows:
· The documents in issue contain information which is incomplete, incorrect, out of date or misleading.
· Some of the documents, particularly the reports of investigations, exhibited bias.
· Other records were altered, by persons in management positions, causing her detriment.
· She is entitled to seek review of the decision to refuse amendment and in so doing will be entitled have her personal information corrected.
· Annotation of records by an agency only does not bar an application to amend.
· She may return to work and the employment records are important to a prospective employer.
86. On balance I am not satisfied that these proceedings should be declared frivolous or vexatious. Having read all of the documents in issue, having read the Statement of Facts and Contentions by both parties, having heard the applicant and Mr Batskos on behalf of the respondent present their respective cases and having reviewed the Transcript, I am not satisfied that these proceedings were brought with the intention of annoying or embarrassing the respondent. For the reasons given above the application was not obviously untenable or manifestly groundless (refer especially Document 7). Accordingly I am not of the view that the proceedings were utterly hopeless.
87. There was a stated collateral purpose of having a file that may present as attractive to a prospective employer but I am not satisfied a return to the workforce is seriously contemplated (refer discussion at p55 of Transcript).
88. This was the first application made by the applicant to seek amendments of documents. The three previous applications were to seek documents which in part were successful.
89. In the present case the respondent made a decision to refuse to amend all of the 11 documents in issue because it was of the belief that the applicant had failed to demonstrate that the records were based on incomplete, incorrect, out of date or misleading information or that the author of the documents was biased or acted improperly (refer p119).
90. It is true that the applicant has only succeeded by these proceedings with having one of the 11 documents amended and to that extent the proceedings could not be characterised as being obviously untenable or manifestly groundless or utterly hopeless. The particular document in issue concerned an opinion expressed by a compensation claims officer which was in the nature of a medical diagnosis which had been specifically dismissed by a consulting psychiatrist. The applicant was entitled to challenge the comments in that document (document 7).
91. It is also true as may be seen from the foregoing that the applicant has not been successful in demonstrating that the other 10 documents should be amended. But that does not in my view permit a conclusion that these proceedings should be dismissed as being frivolous or vexatious.
92. It would be different for example if the applicant had made previous applications with respect to the same documents and over which there had been review by this Tribunal or by a superior court. Attempting to re‑litigate where there had been previously been adverse findings would classically be a basis for such a declaration. Additionally, I am not satisfied that these proceedings were brought with the intention of annoying or embarrassing the respondent nor do I think they were manifestly groundless to be utterly hopeless (refer Wentworth).
93. I have recorded above the reasons why in my view the records should not be amended, having made findings that they were either not incorrect, incomplete, out of date or misleading or because the documents sought to be amended were in the nature of an historical record or because the amendments sought were not in the nature of personal information. But just as the respondent was entitled to assert those legal platforms as the basis for refusal to amend, the applicant was entitled to agitate for amendment. That she was largely unsuccessful does not permit a conclusion that the proceedings were frivolous or vexatious.
decision
1. In all of the circumstances I am satisfied that the decision made by the respondent with respect to documents 1 – 6 and 8 – 11 inclusive where it exercised a discretion to refuse amendment is affirmed.
2. The decision with respect to Document 7 will be set aside and in substitution the document will be amended by a line being drawn through the relevant words (refer paragraph 57) and a reference made on Document 7 to it being amended by this decision and with the respondent’s consent.
3. The application to dismiss these proceedings as being frivolous or vexatious is refused.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Personal AssistantDate of Hearing 4 May 2007
Date of Decision 29 May 2007
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Mr M Batskos
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