Background
Scott Jeffrey Saywell sought documents concerning communications between Comcare and its lawyer under the Freedom of Information Act 1982 (Cth). Comcare refused access principally because the responsive email chains were protected by legal professional privilege. The Administrative Review Tribunal affirmed that decision, finding no waiver or improper purpose and concluding that Comcare was not required under s 22 to provide edited copies that would contain no substantive material after exempt and irrelevant content was removed.
Saywell applied to the Federal Court for an extension of time to appeal from the Tribunal’s decision. His proposed appeal was filed 23 days late. He later obtained leave to rely on an amended notice alleging that Comcare had withheld relevant documents, submitted a false document to the Tribunal, failed to comply with ss 23 and 25 of the Administrative Review Tribunal Act 2024 (Cth), and engaged in contempt.
Comcare accepted that the delay was relatively short and did not claim particular prejudice, but opposed an extension. The Court found that Saywell had not satisfactorily explained why he waited until 11 June 2025 to file after learning by mid-May that the Tribunal’s Guidance and Appeals Panel would not review the decision.
The Court’s Holding
Justice Anderson dismissed the extension application because the proposed appeal lacked merit. An appeal from the Tribunal under s 172 of the Administrative Review Tribunal Act is confined to questions of law, but Saywell’s proposed questions and grounds alleged misconduct by Comcare without identifying any legal error in the Tribunal’s decision. They instead sought to revisit factual allegations that the Tribunal had considered and rejected.
The Court held that the Tribunal had the unredacted responsive documents, inspected them, and determined that they were privileged or irrelevant. It also correctly addressed whether edited copies were required under s 22. The existence of another alleged document or version did not establish that Comcare withheld material it was required to give the Tribunal, particularly because s 64 of the FOI Act governs the production of documents claimed to be exempt.
Saywell’s contempt allegation neither complied with the procedural requirements for bringing a contempt charge nor raised a question of law concerning the Tribunal’s decision. Because the proposed appeal had no reasonable prospect of success, the Court refused to extend time, dismissed the application, and ordered Saywell to pay Comcare’s costs, including costs thrown away by the amended notice.
Key Takeaways
- An appeal from the Administrative Review Tribunal to the Federal Court must identify a genuine question of law; disagreement with factual findings or allegations about a party’s conduct is insufficient.
- Section 22 of the FOI Act does not require an agency to create an edited copy when removing exempt and irrelevant material would leave no substantive content.
- Even a relatively short filing delay may not be excused where the explanation is inadequate and the proposed appeal has no reasonable prospects of success.
Why It Matters
The decision underscores the narrow scope of Federal Court appeals from the Administrative Review Tribunal. Self-represented litigants receive a fair reading of their grounds, and the Court may clarify an inelegantly framed legal question, but it cannot convert factual disputes or misconduct allegations into an appealable question of law.
For FOI practitioners, the ruling also confirms that documents claimed to be exempt may be inspected by the Tribunal under the special procedure in s 64 and that an agency need not provide wholly blank edited copies merely to demonstrate that redactions were made.