Wednesday, 15 April 2009

Federal Court: Child Support Agency 2, Mr Ford 0

In the recent Federal Court case of Ford v Child Support Registrar [2009] FCA 328 , Mr Ford made application under the Freedom of Information Act, in what was essentially a fishing expedition, for a very wide series of documents that might have been held by the Child Support Agency in which he might be mentioned. The Agency twice sought for him to define the documents that he was after, but Mr Ford declined.

When the Agency refused to produce the documents, because it would be oppressive, Mr Ford took the Agency to the Administrative Appeals Tribunal, lost, and then appealed to the Federal Court. The CSA eventually found one document, but because it considered the whole process oppressive, sought not to release the document, resulting in the application to the AAT and later appeal to the Federal Court.

At the time of going to the AAT, Mr Ford:

was serving a term of imprisonment imposed after a trial in December 2005 in
which he had been found guilty in the County Court of Victoria of rape, threat
to kill, stalking, aggravated burglary, false imprisonment, intentionally
causing injury and threatening to inflict serious injury. He was sentenced to
eight years’ imprisonment and required to serve a minimum of five years before
becoming eligible for parole. Those facts are relevant only to the extent that
they bear upon the respondent’s reliance on them in contending for a particular
application of the statutory provisions in issue.


The Child Support Agency also successfully sought an order preventing Mr Ford making further FOI applications without leave of the Tribunal, on the basis that the application, under section 42B of the Freedom of Information Act was frivolous or vexatious, and was bound to fail.

This application was the 22nd time Mr Ford had made a FOI application to the CSA and the 18th time he had ended up in the AAT complaining that the CSA had not given him the document.
He was also unsuccessful there.

This is what he was after:

My request for access to documents is for all emails and any other
correspondence to, from, or between H (AKA Jenkins/ Epstein) and Shaun Epstein,
from or to any other person or entity, according to that which I may have access
under the Freedom of Information Act. This includes anything deleted or
recoverable and for the period 30 August 2005 to 30 November 2005
inclusively.’
In correspondence, an officer of the respondent advised that
the request had been interpreted as “being for documents wherein you or your
circumstances are mentioned in any way, either explicitly or by reference”, to
which the applicant responded:
‘I concur with your interpretation of my
request, and add that it extends to documents that might be read in the context
of me or my circumstances, i.e. that which has relevance. The context includes
and is not limited to the criminal proceedings, relationships, the workplace,
civil debt proceedings, FOI matters and so on. Documents include emails, texted
documents or attachments to emails...The qualification of to from or between
also includes to or from any other person or institution, and does not restrict
the scope to Epstein and H.’


The AAT upheld the objection to release the one document, an apparently disparaging email of Mr Ford by Mr Epstein, on the basis that Mr Epstein feared for his safety from Mr Ford if Mr Ford were to get a copy.

The court refused that portion of the appeal.

The next issue was whether the FOI application was frivolous or vexatious. The court held that the conclusion by the AAT that it was, was supportable:


In the final analysis, the applicant repeatedly made applications under the FOI
Act in substantially similar terms and, when they were refused, applied to the
Tribunal for review of those refusals on much the same grounds. Significant
numbers of those applications were withdrawn before they were resolved. The
inference was therefore reasonably open that the applications had been made to
annoy or harass one or more of H, Epstein and the respondent’s FOI officer. Even
if, contrary to that inference, the tendency to annoy or harass had been
co-incidental, none of the relevant applications was capable of conferring a
practical benefit on the applicant. It was therefore open to the Tribunal, to
refuse, as it did, the application.

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