Page:Patrick v Australian Information Commissioner (FCAFC).pdf/4



THE COURT:

1 The appellant, Mr Rex Patrick, made several applications to the respondent, the Australian Information Commissioner (AIC), for access to documents under the Freedom of Information Act 1982 (Cth) (FOI Act), which were refused. Pursuant to Pt VII of the FOI Act, the appellant sought review by the AIC, described in the FOI Act as an "IC review" (Information Commissioner review), of the decisions to refuse access.

2 In 2021, the appellant applied to this Court for declarations and other relief, alleging that there had been "unreasonable delay" in making the IC review decisions for the purposes of s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The primary judge ordered that the claim for relief in relation to nine of the IC reviews be heard as a separate preliminary question, which was subsequently reduced to seven.

3 The primary judge refused the application, concluding that there had not been unreasonable delay. Although this appeal initially related to those seven reviews, the Court was informed since hearing that one of them (the "seventh IC Review") had been determined. The appellant did not press for declaratory relief in relation to that IC review. We address the grounds only in respect of the remaining six IC review applications.

4 The issue on this appeal is whether the appellant has established that the primary judge erred in concluding that, in relation to the six IC reviews, it had not been established that the delay in consideration of those applications was unreasonable. The appellant presses for declarations to be made to vindicate his contention that the legal limits on the AIC's authority have been exceeded and his right to IC review unlawfully delayed. He expressly stated that he does not seek any order compelling their determination.

5 As it transpired, the appeal was able to be addressed by reference to the IC review for which the appellant had the strongest case, being the "sixth IC Review". If he could not succeed on that IC review, he could not succeed on the other five.

6 For the reasons below, the appellant failed in that endeavour. Accordingly, he has not established that he is prima facie entitled to the declaratory relief sought. Even if he had been prima facie entitled to that relief, we would not have granted it in the exercise of discretion, applying well-established principles as to when declaratory relief may be withheld. Patrick v Australian Information Commissioner [2024] FCAFC 93