Re David Harold Eastman and Department of the Treasury [1984] AATA 185 (1 June 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: DAVID HAROLD EASTMAN
And: DEPARTMENT OF THE TREASURY
No. A73 of 1983
Freedom of Information Act

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
R. Smart Q.C. (Deputy President)
I. Prowse (Member)
A.P. Renouf (Member)

CATCHWORDS

Freedom of Information Act - Jurisdiction debate - application to disqualify.

Reg. v. Commonwealth Conciliation and Arbitration Commission

Ex Parte Angliss Group 122 CLR 546

Reg. v. Watson; Ex Parte Armstrong [1976] HCA 39; 136 CLR 248

HEARING

CANBERRA
1:6:1984

ORDER

The Tribunal as presently constituted declines to disqualify itself from proceeding further with the hearing of the application for review.

The hearing of the application is adjourned upon the following conditions:

(a) Within 10 days from the date hereof the
applicant shall apply to the Federal Court
of Australia for prohibition, and

(b) the applicant shall seek an expedited hearing
from that Court, and

(c) prosecute his application diligently.

General liberty to apply is reserved to either party upon two days' notice

to each other and the Tribunal.

DECISION

On 19 May 1983 David Harold Eastman (pursuant to the Freedom of Information Act 1982) requested the Department of the Treasury to make arrangements for him to inspect

"All documents relating to my personal affairs.
(I ask that you also pay regard to Board Circular
79/6236 of 11.12.79 entitled "The Keeping of Personal
Records on Staff", and P.S.B. Circular 1982/7 dated
2.12.82.)"

On 20 May 1983 he submitted an "Attachment to F.O.I. Request to Department of Treasury". This stated:

"I have obtained from the Public Service Board lawful
access to documents relating to my personal affairs for
the period up to 30.6.67.

In order to obtain a proper understanding of these
documents it is reasonably necessary for me to obtain
access to Treasury documents covering the same period
(see Sect. 12(2)(b) ). I seek access to Treasury
documents, for the period 1.7.67 to the present, on
the same basis."

2. The Treasury interpreted the request as relating only to matters concerning his employment history, that is, matters of a routine service-related nature that arose during the course of his employment with the Treasury.

3. By letter of 24 June 1983 under the hand of Mr. R.Q. Freney, Assistant Secretary, Mr. Eastman was advised, inter alia,:

"In accordance with the provisions of the Freedom of
Information Act 1982, and the Government's intentions in
respect of access to personal affairs documents, the
Department is prepared to grant you access to
appropriate documents for the period you have indicated.
Inspection of these documents may be arranged by
contacting Mr. P. Stortz on telephone 63 3007."

4. The word 'appropriate' was used by the Treasury 'because he had made what we regard as a specific request and we were prepared to grant him access to documents relevant to that request.'

5. About 28 June 1983 Mr. Eastman contacted Mr. Stortz of Treasury and made arrangements to obtain copies of the documents to be made available. On 29 June 1983 Mr. Eastman called at the Treasury and Mr. Stortz handed the copies to him.

6. About 29 June 1983 Mr. Eastman had telephone conversations with Mr. K.R. Page, Senior Executive Assistant to the Secretary of the Treasury, Ms. A.C. Baker, the Personal Secretary to the Secretary, Mr. P. Stortz, a Senior Finance Officer of the Treasury, and Mr. R.Q. Freney, Assistant Secretary, Management Services.

7. Pages 8 - 17 of Exhibit 2, being portion of the transcript of proceedings before Deputy President Todd on 30 November 1983 and pages 19 - 47 of the transcript before us on 29 March 1984 contain Mr. Eastman's account of various conversations, and the affidavits of the Treasury officers set out their account.

8. Mr. Eastman contends that it was plain that he was seeking internal review by the Secretary to the Treasury (or his delegate) of Mr. Freney's decision. The Treasury contends that the conversations do not amount to a request for internal review. There was a subsidiary point that they were not with the Secretary. It did not appear to be in issue that the Treasury officers insisted that Mr. Eastman write to the Treasury concerning any dissatisfaction he had about the response of the Treasury to his request for documents, that Mr. Eastman did not wish to do so and claimed to be entitled to a letter of explanation from the Treasury dealing with the matters he had raised.

9. It also did not appear to be in issue that early in July 1983 Mr. Eastman spoke to Mr. Page and asked if he was going to receive a letter. Mr. Page replied that he understood that Mr. Eastman was not going to receive a written reply unless he put his request in writing. Mr. Eastman stated that he was going to appeal to this Tribunal (p. 28 of the transcript of 29 March 1984 and paragraph 8 of Mr. Page's affidavit of 12 December 1983).

10. On 6 July 1983 Mr. Eastman lodged an application to review

"A decision dated 24.6.83 to grant me only partial access
to documents relating to my personal affairs."

11. He specified the name of the person who made the decision as 'R.Q. Freney' and his office, appointment or title as 'Assistant Secretary Dept. of The Treasury.'

12. The Treasury has contended that the Tribunal has no jurisdiction to entertain this application. The matter came on for hearing before Deputy President Todd on 30 November and 14 December 1983. He held that a request for internal review could be made orally. Section 54(1) of the Act now specifically requires such a request to be in writing.

13. The evidence discloses that a copy of Mr. Eastman's original request was probably seen by the Secretary shortly after it was lodged, that Mr. Freney subsequently discussed it briefly with the Secretary and that either a draft or the final form of the letter of 24 June 1983 was seen by the Secretary prior to its despatch. He is the Principal Officer of the Treasury for the purposes of the Act. The Secretary was also informed of the conversations between Treasury Officers and Mr. Eastman. The extent of his knowledge is a matter still to be determined after argument.

14. The Tribunal as presently constituted commenced the hearing on 29 March 1984. The first issue to be determined was whether it has jurisdiction to hear and determine Mr. Eastman's application.

15. The Treasury contended that:

(a) The initial decision was made by Mr. Freney, an
authorised officer. Before any application could
be lodged with this Tribunal Mr. Eastman must
request internal review - sections 54 and 55 of the
Act. He had not done so and hence the Tribunal had
no jurisdiction.

(b) Alternatively, even if it were held on the
conversations of 29 June 1983 that Mr. Eastman had
made a proper request for internal review,
nevertheless, as he had lodged his application for
review by this Tribunal on 6 July 1983 and had not
waited the required 14 days, the Tribunal had no
jurisdiction. His application was premature.
Further, it was argued that it was clear on the
evidence that no internal review had taken place.

(c) Alternatively, if the view were taken that there
had been no proper decision about 24 June 1983 and
the Principal Officer deemed under section 56 of
the Act to have made a decision refusing to grant
access on the 6Oth day after the request of 19 May
1983 was received Mr. Eastman's application was
premature and the Tribunal had no jurisdiction.

16. On 28 May 1984, the second day of the hearing before us, the applicant amended his application by adding two further matters to the following effect:

(a) the effective decision maker in respect of the
original request was the Secretary to the Treasury,
the Principal Officer.

(b) Alternatively, there had been no decision as Mr.
Freney was not authorised to make the decision
under challenge.

17. At the start of the hearing on 28 May 1984 Mr. Eastman requested the members of the Tribunal to disqualify themselves on the ground of bias. The Treasury objected to the members of the Tribunal doing so and it was indicated that were we to do so there was a real possibility that the Treasury would apply for a writ of mandamus to compel the members of the Tribunal to proceed and hear the matter.

18. Mr. Eastman advanced a number of grounds in support of his application. One of these related to events and adjournments prior to 29 March 1984. This is not something with which we can deal.

19. Mr. Eastman contended that if all the deponents of the affidavits had been present at the start of the hearing on 29 March 1984 all the evidence could have been taken and the jurisdiction point resolved that day. We do not think that this is correct. Mr. Freney's evidence concluded after 3.30 p.m. and it was about 3.45 p.m. when it was decided that it would be appropriate for the Secretary to the Treasury (Mr. J.O. Stone) to attend and give evidence. Addresses had not commenced at that stage. Subsequently, Mr. Stone spent about two hours in the witness box.

20. Mr. Eastman contends that his comments about the deponents not being present at the hearing on 29 March 1984 were "more or less ignored." This is not correct. However, we did prefer to concentrate on the future conduct of the case. Much of the day was taken up with the evidence of Mr. Eastman and Mr. Freney.

21. Mr. Eastman contends that the Tribunal should have commented upon the 'section 37 type document' (Exhibit 1) provided by the Department, as, in his view, it did not contain sufficient detail to be so regarded. The Treasury provided this document at the request of the Tribunal notwithstanding that it contended that it was not obliged to do so because the Tribunal lacked jurisdiction. On pages 34 - 36 the Treasury asserts that it holds a considerable number of documents relating in some way to Mr. Eastman in a large number of files and lists the broad categories into which the documents fall. It contends that these are not covered by his original request. We had not reached the stage where the 'section 37 type document' required detailed consideration. When we contrasted the nature of the documents supplied to Mr. Eastman as listed in Exhibit K and pages 34 - 36 of the 'section 37 type document' the general nature of the substantive issue between the parties appeared. We relied on Exhibit K as Mr. Eastman told us that he had discarded some of the documents supplied to him by the Treasury as they were not of consequence.

22. Mr. Eastman contends that while the Treasury's counsel and instructing solicitor were reading his diary they sniggered and that the Tribunal incorrectly dismissed his objection. While they did exchange smiles at one stage, sniggering is an erroneous description and it did not seem that any smiling related to any matter in the diary. We found nothing objectionable in their conduct. It was our view that they behaved with propriety and that Mr. Eastman's objection lacked substance.

23. It was further contended that the Tribunal should have issued a reprimand or caution to counsel for the Treasury as to the number of objections he took. Counsel at all times participated in the proceedings quietly but firmly. We felt that he behaved with restraint and propriety and that no reprimand or caution was required or desirable.

24. Mr. Eastman contends that there were frequent references in the proceedings to him being unrepresented and to the difficulties this allegedly created. It was alleged that this indicated bias against him. We do not agree. We were concerned to ensure that he was not disadvantaged on this account and that all arguments reasonably open to him were put and supported by such evidence as could be reasonably obtained. We were also concerned that serious allegations be appropriately supported by evidentiary material.

25. It was submitted that the fact that the Tribunal had raised with Mr. Eastman the possibility of him making a fresh request under the Freedom of Information Act as one way of avoiding a lengthy debate and possible appeals on the jurisdiction issue and the consequent delays indicated bias. Because of the time and expense involved in the jurisdiction issue and because it did not deal with the substantive issue the Tribunal raised with both parties the question whether it would be possible to avoid this issue. We sought to see if a modus vivendi could be devised to enable us to come to the substantive issue, namely, whether any of the documents generally described on pages 34 to 36 of the 'section 37 type document' fell within Mr. Eastman's original request.

26. It became apparent that both parties were taking up entrenched positions. As we pointed out to the parties the Tribunal can only make suggestions as to possible ways to get to the heart of the matter. If they are not taken and there are fundamental jurisdiction points we must deal with them. The presiding member said "We have got an open mind on those matters and we will have to consider them" (p.89 of Transcript of 29 March 1984). At p.90 the presiding member said:

"If there is no modus vivendi then we just simply will
proceed and look at the arguments of both sides on the
jurisdiction point carefully and in detail and fairly
and try and reach a decision on them. But we have no
view on those points at this stage."

This remains our position.

27. Mr. Eastman also argued that the refusal of the presiding member to grant a directions hearing when requested to do so by Mr. Eastman by letter of 10 April 1984 constituted an indication of bias. Mr. Eastman's request was carefully considered but it was felt that a directions hearing was inappropriate and that the better course was for the hearing to resume on the first convenient day, namely, 28 May 1984, and to deal with all matters on that day.

28. In refusing the application of Mr. Eastman to disqualify ourselves we had regard to the principles set out in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex Parte Angliss Group 122 CLR 546 at pp 553 - 554, and Reg. v. Watson; Ex Parte Armstrong [1976] HCA 39; 136 CLR 248. In particular, we approached Mr. Eastman's application on the basis of whether it might reasonably be suspected by fair-minded persons that all or any members of the Tribunal might not resolve the questions before it with a fair and unprejudiced mind.

29. After we declined to disqualify ourselves Mr. Eastman sought an adjournment to apply to the Federal Court for a writ of prohibition. We decided that, on balance, the preferable course before adjourning was to take the evidence of Mr. Stone as he was present at the hearing. We felt that if the application to the Federal Court succeeded the evidence of Mr. Stone would nevertheless be known and possibly could be used before the Tribunal, albeit differently constituted, and that if the application failed some time would have been saved.

30. Perhaps we should add that some of the material placed before us appeared to be of doubtful relevance. Some material tended to be somewhat emotive. We have yet to consider and deal with the material received.

31. One of the members hearing this matter reaches the statutory retiring age on 20 August 1984. If the application to the Federal Court fails it would be a pity if the Tribunal had to be reconstituted again.

32. In granting Mr. Eastman his adjournment we did so on the basis that he would make his application to the Federal Court for prohibition within ten days of the delivery of these reasons, seek an expedited hearing from that Court and prosecute his application diligently. We gave liberty to apply to either party on two days notice.