Zacek and Australian Postal Corporation
[2005] AATA 509
•3 May 2005
Administrative
Appeals
Tribunal
DECISIONS AND REASONS FOR DECISION [2005] AATA 509
ADMINISTRATIVE APPEALS TRIBUNAL N° V2004/1053
N° V2004/1174
GENERAL ADMINISTRATIVE DIVISION
Re: SANDRA ZACEK
Applicant
And:AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 3 May 2005
Place: Melbourne
Decision:The Tribunal decides that it does not have jurisdiction to review the claims for exemption made in respect of document 12 in the Schedule of Exempt Documents dated 4 October 2004.
(sgd) G.D. Friedman
Member
FREEDOM OF INFORMATION ‑ jurisdiction ‑ estoppel ‑ matters previously decided by Tribunal
Administrative Appeals Tribunal Act 1975 s 33
Freedom of Information Act 1982
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Re Hopper and Australian Meat and Live‑stock Research and Development Corporation (1990)11 AAR 329
Re Zacek and Australian Postal Corporation [2002] AATA 473
REASONS FOR DECISION
3 May 2005 G.D. Friedman, Member
This is an application by Sandra Zacek (the applicant) for review of a decision dated 23 July 2004 by a delegate of the Australian Postal Corporation (the respondent) to refuse access to documents under the Freedom of Information Act 1982 (the FOI Act).
As a preliminary question, the Tribunal was required to consider whether it has jurisdiction to consider the application in respect of Document 12 in the Schedule of Exempt Documents (the schedule) dated 4 October 2004. At the hearing on 3 May 2005 on the question of jurisdiction the applicant represented herself and Mr M. Batskos, solicitor, FOI Solutions, represented the respondent.
BACKGROUND
On 15 May 2000 the applicant sought access to a comprehensive list of documents pertaining to her, said to be held by the respondent, pursuant to the FOI Act. Following a decision and a review decision by the respondent, the matter came before the Tribunal for review. The Tribunal handed down its decision on 18 June 2002 (Re Zacek and Australian Postal Corporation [2002] AATA 473) (the 2002 decision). That decision set aside the decision under review and substituted a decision that certain documents and parts of documents were not exempt, while certain other parts of documents were exempt from access.
On 22 July 2002 FOI Solutions, acting on behalf of the respondent, provided a set of the documents or parts of documents that the Tribunal had considered were not exempt, to the applicant. These documents amounted to 58 pages. On the same date FOI Solutions sent a letter to Ms M. Cameron, of the respondent’s Legal Services Group, containing a set of documents released to the applicant in the light of the decision of the AAT, enclosing another set of those 58 documents. That letter, and the set of 58 documents enclosed, is identified as Document 12 in this application.
On 23 March 2004 the respondent received a request under the FOI Act from the applicant for access to various documents concerning her. On 1 June 2004 the respondent made a decision to refuse access to the documents. On 18 June 2004 the applicant sought internal review of the decision. On 23 July 2004 the respondent made a decision affirming the original decision.
On 5 October 2004 the respondent released in full 71 pages of documents that it previously claimed were exempt. The respondent enclosed a schedule of exempt documents and stated that 9 pages and part of another page were the only documents still in dispute. The schedule included Document 12.
On 15 September 2004 the applicant lodged an application with the Tribunal for review of the decision by the respondent.
CONSIDERATION OF THE ISSUES
Mr Batskos submitted that the Tribunal does not have jurisdiction to hear the application lodged by the applicant in respect of the 71 pages of documents released to the applicant on 5 October 2004 because the documents were not considered in the 2002 decision, as each was created after the decision. He noted that Document 12 of the schedule consists of a letter from the respondent’s solicitor to the respondent enclosing a set of the 58 pages of documents released to the applicant in accordance with the 2002 decision, with exempt material deleted.
Mr Batskos stated that the applicant was seeking to have determined again the question of whether the parts of documents which the Tribunal had previously found to be exempt were exempt. He submitted that there has been a final determination in respect of 58 pages of the 71 released to the applicant on 5 October 2004, and that the parties and subject matter in the 2002 decision were the same as in the present application. Mr Batskos said that public policy requires that there should be an end to litigation in order to maintain confidence in the administration of justice, and that the applicant was estopped from having the same matters heard again. He also referred to s 33(1) of the FOI Act, which gives the Tribunal flexibility and broad discretion to regulate its own proceedings, and submitted that the Tribunal should not allow a matter that has been finally determined to be re‑litigated.
The applicant said that she was not seeking to re‑litigate the 2002 decision. She submitted that in response to her request under the FOI Act the respondent re‑listed the documents released in part or in full following the 2002 decision as relevant to her request. Therefore, the respondent had chosen to review documents and parts of documents previously considered by the Tribunal. She said that in listing the documents the respondent did not and does not accept the 2002 decision, or alternatively the respondent has made a fresh decision and listed some of the documents as exempt, which the Tribunal had determined were not exempt.
The applicant stated that she did not request the 58 documents that were part of the 71 pages released to her, and it was the respondent’s decision to release them. She submitted that the respondent made a decision in respect of documents that were considered to be relevant to her request, so the decision is reviewable.
In reaching its decision the Tribunal takes into account relevant documents and submissions made at the hearing. The Tribunal accepts that the applicant believes that she is not seeking to re‑litigate the matter that was the subject of the 2002 decision. The Tribunal notes that in Re Hopper and Australian Meat and Live‑stock Research and Development Corporation (1990)11 AAR 329 the Tribunal stated at 340:
…It would be ludicrous if a person could make a series of requests for different documents all of which were in the possession of one agency and in respect of which the same facts were legally indispensable to the question of whether or not they were exempt documents under the [FOI] Act and could repeatedly require the agency to re-establish those facts in separate proceedings in respect of each of those documents. It is precisely to prevent that type of misuse of the adjudicative process with the consequent waste of judicial time, public resources and the resources of the other party that the doctrine [of estoppel] exists.
The Tribunal accepts the submission from Mr Batskos that an estoppel may be created by a final decision of a statutory Tribunal. There should be an end to litigation in order to maintain confidence in the administration of justice, and that this is applicable to administrative Tribunals (Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353). In the matter before the Tribunal the parties and the subject matter are the same as in the 2002 decision, and there has been a final determination in respect of 58 pages of the 71 released to the applicant by the respondent. In the 2002 decision the Tribunal made findings of fact and law that were indispensable to its ultimate conclusion, after giving the applicant an opportunity to present evidence and argument. The applicant accepted that decision when she did not appeal it.
For these reasons the Tribunal finds that the applicant is prevented from asserting a right of access to the exempt parts of the 58 pages of documents considered by the Tribunal in the 2002 decision. The applicant is also prevented from denying that the 58 pages of the 71 pages which were considered by the Tribunal in the 2002 decision are exempt, inconsistent with the findings of the Tribunal in the 2002 decision.
DECISION
The Tribunal decides that it does not have jurisdiction to review the claims for exemption made in respect of Document 12 in the Schedule of Exempt Documents dated 4 October 2004.
I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 3 May 2005
Date of decision: 3 May 2005
Advocate for applicant: Self‑representedAdvocate for respondent: Mr N. Batskos, Solicitor
Solicitor for respondent: FOI Solutions
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