Case: Khoh v Telstra Corporation Ltd [1998] AATA 45
Outcome: cited
first question raised again the issue dealt with by Finn J, whether the Tribunal had failed to appreciate the significance of the word "all" in s 24A of the FOI Act and had failed to understand properly, and to carry out a critical evaluation of, the steps taken by the respondent. Her Honour concluded from the Tribunal's reasons that it understood the nature of the task it was required to perform. The appellant had relied on an earlier Tribunal decision in Khoh v Telstra Corporation Ltd [1998] AATA 45 and had attempted to argue that the search carried out in his case was less than that carried out in Khoh . The federal magistrate held that Khoh could not be taken as a precedent that all filing cabinets had to be searched to prove that all reasonable steps had been taken. Her Honour also rejected the proposition that the search in Khoh's case was more intensive than the search in the present case. Her Honour also rejected an argument based on the adequacy of the inquiries made by the particular officer in the present case, when compared with the same officer's inquiries in Khoh . Her Honour reminded herself that the essential question was whether all reasonable steps were taken to locate the relevant documents. Her Honour concluded that it was open to the Tribunal to reach the conclusion that all reasonable steps had been taken. Her Honour did make some remarks critical of the respondent's document storage and retrieval system. These were based on findings of the Tribunal. The second and third questions in the appeal suggested error and ambivalence on the part of the Tribunal in relation to events prior to 13 February 1998. The Tribunal had characterised the appellant's evidence and contentions relating to events prior to that date as not directly relevant to the Tribunal's decision-making process. The appellant contended that this was an error, and that it was inconsistent with the Tribunal's reliance on the respondent's documents that preceded that date. The federal magistrate pointed out that the Tribunal in fact referred to a number of events that preceded 13 February 1998. Her Honour held that the Tribunal had not failed to have regard to events prior to 13 February 1998, but had concluded that those events were not directly relevant to what it had to decide. The appellant had complied with s 15A of the FOI Act, by making a request in accordance with the respondent's established procedure for requesting personnel records, so there was no issue about his being barred by s 15A from making his request pursuant to the FOI Act. The provision of some documents to the appellant in 1997 left open the question whether all reasonable steps had been taken since then to find the documents the appellant sought. As her Honour said, this was the question the Tribunal had to determine. Her Honour characterised the appellant's real complaint as being that there should have been an internal review of a particular decision. As her Honour said, once the matter reached the Tribunal, the internal decisions of the respondent were irrelevant, because the Tribunal was required to make the correct or preferable decision on the material before it. What had been done by the respondent's officers was relevant in determining whether all reasonable steps had been taken, but the views of those officers about that issue were immaterial. Her Honour concluded that the Tribunal had taken into account events prior to 13 February 1998, to the extent that they were relevant. Her Honour then distinguished the material provided by the respondent from that on which the appellant had intended to rely, by saying that the respondent's material was relevant to where documents might have gone. The fourth question challenged a conclusion of fact by the Tribunal as involving extinguishing the significance of a particular document in evidence before it apparently on a whim. The federal magistrate concluded that the Tribunal had simply reconciled two pieces of conflicting evidence. Even though it had reached a different conclusion on that issue from the decision that was set aside by Finn J, the Tribunal was entitled to take a different view of the facts when it considered the matter again, and was obliged to do so if it realised it had made a mistake previously or had seen the matter more clearly the second time. The fifth question concerned submissions the appellant had made about the earlier Tribunal proceeding. The appellant suggested that the Tribunal had accepted the respondent's argument that those submissions were irrelevant. The federal magistrate pointed out that, on the face of it, it did not appear that the Tribunal had ruled expressly on the respondent's argument. The Tribunal did say that the appellant's submissions should have been made at the earlier hearing, but went on to summarise them and expressly accepted one of the submissions, concerning a mistake about the date of release of the occupational health medical file. The Tribunal also acknowledged that it had been remiss in not explaining in the earlier decision what it had meant by the notion of "exhaustive searches". Her Honour concluded that it could not be said that the Tribunal acceded to the respondent's argument as to the irrelevance of the appellant's submissions about the earlier proceeding. To the extent that those submissions were relevant, the Tribunal took them into account. The sixth question asked whether the Tribunal had acted improperly by depriving the respondent's witnesses of the opportunity to answer questions freely on their own upon being examined or cross-examined. The appellant referred to three instances where he said the Tribunal had intervened improperly during the cross-examination of witnesses. In the first case, her Honour concluded that it was appropriate for the Tribunal to stop the appellant questioning a witness about speculative matters. The second case concerned an exchange about whether one officer had sought advice from another. The advocate appearing for the respondent objected because of the possibility that legal advice had been involved in the exchange between the two officers. The Tribunal clarified the evidence that had been given. The federal magistrate found that the Tribunal might have been wrong about whether the officer giving evidence had no recollection of speaking to the other officer about the appellant's application, but held that this was nevertheless irrelevant to the question the Tribunal had to determine. The third case concerned the Tribunal's intervention in an exchange about the degree of formality in requests by one officer to another to make searches. The federal magistrate regarded this as a proper intervention by the Tribunal to clarify a question. Her Honour concluded that the Tribunal's approach was fair, focusing on relevant matters while allowing the appellant to elicit the appropriate evidence. In his seventh question, the appellant fastened on Finn J's statement that s 24A of the FOI Act is "not meant to be a refuge for the disordered or disorganised." The appellant asked whether the Tribunal had appreciated this. In fact, as the federal magistrate pointed out, the Tribunal had referred specifically to Finn J's comment, indicating that the Tribunal had taken the comment into account. The federal magistrate referred to the Tribunal's findings of fact about the respondent's record management. Her Honour concluded that the Tribunal did appreciate that s 24A of the FOI Act is not intended to be a refuge for the disordered or the disorganised. At the same time, the Tribunal recognised that the respondent's system imposed severe limitations on its ability to retrieve the appellant's document. At [53], her Honour said: Whatever the intent behind s.24A, it cannot magically correct a "system" that in the past has been disordered and disorganised. Section 24A can demand that logical and thorough investigations be undertaken, but it cannot change the historical fact that a particular document storage and retrieval "system" is disordered and disorganised. Her Honour pointed out that the Tribunal had found as a fact that, within the confines of its previous system, the respondent had taken all reasonable steps to find the documents the appellant sought. In her Honour's view that finding was open on the evidence. Her Honour then dealt with arguments the appellant put forward in relation to the facts, concluding that the Court could not disturb the Tribunal's findings of fact. Her Honour then dealt with an argument that the Tribunal had not indicated how much weight it had given to hearsay evidence. Her Honour held that it was unnecessary for the Tribunal to itemise the weight it gave to each aspect of the evidence. The Tribunal was entitled to give the evidence such weight as it deemed fit. The appellant's question eight raised the issue whether the Tribunal had made a decision that no reasonable decision-maker would have made. This question turned on whether the Tribunal's interpretation of one of the appellant's email requests was unreasonable. The issue was whether, in seeking access to a file "at a future time to be nominated", the appellant was indicating (as the Tribunal thought) that he would nominate the time, or was indicating (as the appellant said he thought) that the recipient of the email would nominate the time. The federal magistrate did not consider the Tribunal's interpretation of the email to be unreasonable. The appellant also relied on a series of complaints about the Tribunal's treatment of various factual issues as evidence of the unreasonableness of its decision. The federal magistrate did not consider that any of the Tribunal's conclusions on those issues, or any of the omissions the appellant complained of, were unreasonable. Her Honour then pointed out that the ground of unreasonableness does not apply to unreasonable interpretations of evidence, but to decisions that are themselves so unreasonable that no reasonable decision-maker could have made them. Her Honour was not persuaded that the matters identified by the appellant, whether singly or in combination, demonstrated that the Tribunal's decision was unreasonable to the requisite degree, or at all. The appellant's ninth question concerned whether he was entitled to a refund of his application fee. As the appellant did not suggest that he had asked the Tribunal for a refund of that fee and the Tribunal had refused to give it to him, the federal magistrate could not see how the question could raise an error of law on the part of the Tribunal. The appellant's tenth question asked whether the Tribunal had taken the right approach for the rehearing. The appellant argued that the Tribunal had failed to evaluate critically the steps taken by the respondent, but had concentrated on the fact that almost everything requested by the appellant had been supplied. The federal magistrate acknowledged that the Tribunal had observed that the only documents the appellant sought that had not been received were his annual performance reports and an entry in his occupational health medical file concerning the events of 2 September 1994. Her Honour was not persuaded that the Tribunal failed to evaluate critically the steps taken by the respondent. Her Honour referred to correspondence after the Tribunal hearing, in which the Tribunal wrote to the respondent's solicitors, referring to the respondent's Adelaide site, and asking if any of the required documents were held there. This demonstrated the active consideration of the Tribunal as to whether there were gaps in the respondent's investigation. The appellant's first additional question concerned this post-hearing correspondence. The appellant asked whether it amounted to a denial of procedural fairness. The appellant received copies of the letter from the Tribunal to the respondent and the respondent's reply. He then had some three months to make any further submission or invite the Tribunal to hear any further evidence. He did not do so. The federal magistrate concluded there was no denial of procedural fairness, because the appellant had had ample time to put to the Tribunal whatever he wished to say about the correspondence. The appellant's second additional question raised the issue of bias on the part of the Tribunal. The appellant argued that the Tribunal had prejudged his case, by carrying over its mind-set from its earlier decision to the second decision. The federal magistrate was not persuaded that the Tribunal carried over its mind-set. Her Honour was not persuaded that an informed lay observer would reasonably have apprehended that the Tribunal had carried over its mind-set. Her Honour held that it was not compulsory for the Tribunal to be constituted differently after remittal from the Court. The nature of the error that had been identified did not make it necessary or desirable that the Tribunal be reconstituted to avoid actual or apprehended bias. In her Honour's view, nothing the Tribunal did could lead to a conclusion that it was actually biased, or could have given rise to apprehended bias. The appellant's additional question three was whether the Tribunal disregarded the appellant's submission based on Khoh that a formal search request was not issued and the search did not go down to the filing cabinets level. In her Honour's view, the submission based on Khoh was dealt with sufficiently by the Tribunal. In his fourth additional question, the appellant referred to procedural fairness. He raised a question of fact about the Tribunal's understanding of the evidence. The federal magistrate held that the Tribunal's task was to determine whether all reasonable steps had been taken to find the relevant files. Even if there had been a denial of procedural fairness in relation to the Tribunal's conclusion on the particular item of evidence, it could not have made a difference to the decision. The appellant then raised in his fifth additional question the issue whether the Tribunal had denied him procedural fairness by revoking a summons to give evidence issued to a Mr Atkins. The appellant told the Tribunal on 7 March 2007 that the summons had not been served on Mr Atkins. He did not know the address of Mr Atkins. He asked the Tribunal to take steps to ensure the attendance of Mr Atkins. He told the Tribunal that Mr Atkins would tell it that he had taken no action in relation to the appellant's request for access to documents dated 24 December 1996. The Tribunal said that Mr Atkins and the respondent were not required to take any action until a valid request was received on 13 February 1998. The Tribunal considered that the evidence proposed to be adduced from Mr Atkins was not relevant to any issue in dispute and rescinded the summons. The federal magistrate held that the Tribunal was correct to rescind the summons to Mr Atkins. It was not material that Mr Atkins did not act on the request of 24 December 1996. The Tribunal accepted as a matter of fact that he did not act on that request. The question for the Tribunal was whether all reasonable steps had been taken by the time of the Tribunal's decision. The evidence proposed to be adduced from Mr Atkins was not probative as to this question. The file held by Mr Atkins had been provided to the appellant in any event.