Bray v Workers Rehabilitation & Compensation Corporation
[1994] SASC 4478
•30 March 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ
CWDS
Administrative law - freedom of information - Freedom of Information Act - report of insurance assessors prepared for WorkCover to enable WorkCover to consider claim by the second respondent for compensation - information in the report was given by fellow workers of the second respondent - they gave information to the assessor on his promise of confidence ie that the information would not be disclosed to the second respondent - WorkCover directed by Ombudsman to disclose much of the information - whether report or part of it exempt from disclosure - HELD report exempt because disclosure would found an action for breach of confidence - Schedule 1 of Act clause 13(a) - HELD also that the appellants are persons dissatisfied within 540 of the Act
Freedom of Information Act 1991ss 12, 26 and 40 and Schl cl4, cl9(1) and cl13(a) and (b) and Workers Compensation and Rehabilitation Act 1986 ss 110 and 112. Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1987) 71 ALR 73 at 79-81 and 82; Moorgate Tobacco Co Ltd v Philip Morris Ltd and Anor (No. 2) (1984-85) 156 CLR 414 and Johns v Australian Securities Commission and Others (1993) 116 ALR 567 at 576-577, applied. Brodbridge and Anor v Stammers (1987) 76 ALR 339 at 341, discussed. Murtagh v Federal Commissioner of Taxation (1984) 54 ALR 313; Attorney-General's Department and Anor v Cockcroft (1986) 64 ALR 97; Re Organon (Australia) Pty Ltd and Department of Community Services and Health : Public Interest Advocacy Centre (party joined) (1987) 13 ALD 588; Salter and Ors v NCSC (1988) 132 ACLR 253 at 256-257; Onus and Anor v Alcoa of Australia Limited (1981) 149 CLR 27; R v HM Treasury ex parte Smedley (1985) 1 All ER
589; Re Boehm and Ombudsman (Cth) (1985) 8 ALN N29; Accident Compensation Commission v Groom (1991) 2 VR 322 and In re Perqamon Press Ltd (1971) Ch 388, considered.
HRNG ADELAIDE, 7 February 1994 #DATE 30:3:1994
Counsel for appellants: Mr T M McRae
Solicitors for appellants: Reilly Basheer Downs
and Humphries
Counsel for respondent: Ms C M Branson QC
Solicitors for respondent: Thomsons
Respondent Stanley: In person
JUDGE1 KING CJ I would answer the questions in the Case Stated as follows:-
1. Yes. The appellants are within the meaning of s.40 of
the Freedom of Information Act persons dissatisfied with the
Determination of Workcover dated 20th May 1993.
2. The Report of T J Sinclair and Associates dated 7th
February 1992 is an exempt document pursuant to Clause 13(a)
of Schedule 1 to the aforesaid Act.
2. I agree with the reasons of Justice Bollen.
JUDGE2 BOLLEN J This is a case which we may take to have been referred by a Judge for decisions on questions of law. On some matters which arise it will be necessary to decide whether a question of law has been asked.
2. The questions arise "under" the Freedom of Information Act 1991. The "Case Stated" is:-
"1. On the 25th day of December 1991 the second respondent
('Stanley') made a claim against the first respondent
('WorkCover') in respect of alleged injuries sustained by
her on the 17th December 1991 in the course of her
employment with the Northern Newspapers Pty Limited in
Whyalla, South Australia.
2. WorkCover instructed T J Sinclair and Associates, Loss
Adjusters of Whyalla ('Loss Adjusters') in the said State,
inter alia, to obtain statements from the appellants ('Bray'
and 'Smith'), also employees of Northern Newspapers Pty
Limited.
3. 3.1 On the 3rd day of February 1992 Mr Jonathan Radford
from the Loss Adjusters attended the Northern Newspapers
Limited and requested that Bray and Smith provide him with
statements relating to their observations of Stanley.
3.2 Mr Radford informed Bray and Smith that they were
required to assist him in his investigations pursuant to
Section 110 of the Workers Compensation and Rehabilitation
Act.
3.3 Bray and Smith understood from Mr Radford that the
information given to him was to be given in the strictest
confidence and to be used only for the purpose of
determining the validity of Stanley's claim for compensation
under the Workers Compensation and Rehabilitation Act and
that it would not be disclosed at any time to Stanley or to
any other person.
4. On the 7 February 1992, Jonathan Radford of T J Sinclair
and Associates reported in writing to WorkCover as to his
investigation of Stanley's claim and particularly in respect
of discussions held with Bray and Smith.
5. On the 24 March 1992, Stanley applied to WorkCover for
access to documents relating to the claim, including the
reports of T J Sinclair and Associates.
6. Pursuant to Section 26 of the Freedom of Information Act
1991, WorkCover consulted Smith and Bray in writing and
obtained their views before releasing any of the documents
to which Stanley sought access.
7. WorkCover made a determination on the 21 April 1992,
refusing access to those sections of the reports of the Loss
Adjusters that referred to statements made by Bray and
Smith.
8. On 20 May 1992, Stanley filed with WorkCover an
application for Internal Review requesting access to the
exempted information.
9. On 3 June 1992 following an internal review of the
application by Stanley, WorkCover refused access to the
parts of the Loss Adjusters reports that referred to
statements made by Bray and Smith.
10. On 9 July 1992, the Ombudsman, pursuant to Section
39(3)(b) of the Freedom of Information Act, directed that
the WorkCover determination of 21 April 1992 was not
properly made and directed release of specified sections of
the reports of the Loss Adjuster previously exempted by
WorkCover.
11. By letter dated 20 May 1993 to Stanley, WorkCover made a
further determination complying with the said direction of
the Ombudsman.
12. By Notice of Appeal dated 2 June 1993 amended pursuant
to leave granted by His Honour Judge Roder on Thursday 7th
October 1993, the appellants appealed, or alternatively,
purported to appeal against the determination referred to in
paragraph 11 hereof.
13. The parties request the Full Court to determine upon
this case stated: 13.1 Whether Bray and Smith are within the
meaning of Section 40 of the Freedom of Information Act,
persons dissatisfied with the determination of WorkCover
dated 20th May 1993;
13.2 Whether the reports or parts thereof which refer to
Bray and Smith prepared by the Loss Adjusters dated 7
February 1992, are documents exempted from access pursuant
to the Freedom of Information Act 1991 on the ground that
each such document, or extracts thereof, contains matter:
13.2.1. that relates to an opinion, advice or recommendation
obtained prepared or 3 recorded or any consultation or
deliberation that has taken place in the course of, or for
the purpose of the decision-making function of WorkCover and
the disclosure of which would, on balance, be contrary to
the public interest;
13.2.2 the disclosure of which would found an action for
breach of confidence; and/or
13.2.3 obtained in confidence, the disclosure of which might
reasonably be expected to prejudice the future supply of
such information to WorkCover and would, on balance, be
contrary to the public interest; and/or
13.2.4 which otherwise characterizes it as an exempt
document.
14. The following documents annexed hereto form part of this
Case stated: 14.1 Notice of Appeal dated 2 June 1993;
14.2 Amended Notice of Appeal dated 7th October 1993;
14.3 Letter from Ombudsman to WorkCover dated 10 February
1993;
14.4 Letter from WorkCover to Ms M Stanley dated 20 May
1993;
14.5 Report of T J Sinclair and Associates dated 7 February
1992 (sealed)."
3. The appellants appeal against the determination mentioned in paragraph 11 of the "Case Stated". That was the determination made by WorkCover at the direction of the Ombudsman. The appellants do not want more than a small part of the report of T J Sinclair and Associates disclosed to the second respondent, Michelle Stanley. The second respondent, who appeared for herself before us, submitted that the whole report should be disclosed to her.
4. The first question asks whether the appellants are persons dissatisfied with the determination of WorkCover made at the direction of the Ombudsman.
5. The relevant provisions of the Freedom of Information Act have all been followed in the making of the various determinations mentioned in the Case Stated. Now there is in existence a determination with which the appellants are in the ordinary sense of the word dissatisfied. They dislike the determination and its result. They do not want the second respondent to have large parts of the information in the report which information the Ombudsman has, in effect, caused to be released. The appellants claim that the report of T J Sinclair and Associates, which contains a record of information which they gave to Jonathan Radford, is an exempt document within the relevant provisions of the Act and of Schedule 1 of the Act. Their right to have the determination considered depends on whether the appellants are persons who are "dissatisfied with a determination of WorkCover".
6. Section 40 of the Freedom of Information Act is:-
"40. (1) A person -
(a) who is dissatisfied with a determination of an agency
that is liable to internal review and remains dissatisfied
following an internal review;
or
(b) who is dissatisfied with a determination that is not
subject to internal review, may appeal against the
determination to a District Court.
(2) On such an appeal the Court may -
(a) confirm, vary or reverse the determination to which the
appeal relates or remit the subject-matter of the appeal to
the agency for further consideration;
(b) make such further or other orders (including orders for
costs) as the justice of the case may require."
7. There is no definition of the phrase "person who is dissatisfied" in the Act.
8. The appellants gave information to Radford under compulsion. Radford told them that they were required to assist him in his investigation by virtue of the provision of section 110 of the Workers Compensation and Rehabilitation Act. It was common ground before us that those provisions did so require. I think that they did.
9. The appellants were told by Radford that the information was to be given in the strictest confidence. He went on to say what is set out in paragraph 3.3 of the Case Stated.
10. When the second respondent sought access to the report of T J Sinclair and Associates, WorkCover consulted the appellants to ask what they thought about the releasing of the report. That consultation was done in case s26 of the Freedom of Information Act required it. We may take it that the appellants replied that they thought the report should not be released. Now, despite their wishes and despite the "promise of confidence" the appellants find that, at the behest of the Ombudsman, WorkCover proposes to release much of the information given by the appellants and now appearing in the report. They certainly seem to be entitled to be dissatisfied. It was interesting to find that Ms Branson QC, for the first respondent, (ie for WorkCover) argued that the appellants are persons dissatisfied within s40 of the Freedom of Information Act. Of course, Mr McRae, for the appellants, submitted that they are "persons dissatisfied". Ms Branson went further. Ms Branson said:-
"As Mr McRae has made plain, my client is in the slightly
curious position, being the respondent to this appeal but
being a party who unwillingly made its own determination. It
does in fact address the court in support of the case of the
appellants and not in support of the case of the second
respondent."
11. I should say that Ms Branson said, too, that WorkCover concedes that it is an agency within the meaning of that term in the Freedom of InformationAct.
12. In my opinion, the argument which Ms Branson put on the issue whether the appellants are dissatisfied persons or not is correct. Ms Branson said:-
"I turn then to the issue of whether the appellants are
persons dissatisfied with the determination under the Act.
It is the first respondent's submission that they are
persons dissatisfied. In my submission, if they are fond to
be persons who should have been consulted under s.26 because
the report dealt with matters affecting them personally,
their personal affairs, there could be no argument but that
they were persons who were dissatisfied with the
determination. If, however, it is found that they are not,
the document is not a document affecting their personal
affairs, then it is plainly open to argument that they are
not persons sufficiently affected by the determination to
have a right of appeal. The submission, however, that I put
to the court, is that they are persons dissatisfied for the
reasons that are listed in paragraph 5.2 of my Outline. They
are, in my submission, clearly persons who could be
potentially adversely affected by the determination. They
are persons to whom a duty of confidence was owed by
WorkCover. They are persons, in fact, consulted, although
whether or not they ought to have been consulted might
depend on the characterisation of the material and, in my
submission, they are persons upon whom the determination has
a greater effect than the public. Generally, they do have a
real interest in having the determination reviewed."
13. The reasons in para 5.2 of Ms Branson's Outline, to which she refers in those remarks are:-
"5.2 The appellants are persons dissatisfied with the
determination as -
(i) persons adversely affected by the determination;
(ii) persons to whom a duty of confidence is owed by
WorkCover;
(iii) persons consulted by WorkCover before it made its
initial determination - albeit not consulted by reason of
the terms of Part III Division II of the FOI Act;
(iv) persons upon whom the determination has a greater
effect than upon ordinary members of the public - they have
a genuine interest in having the determination reviewed."
14. I think that argument needs no authority to support it. There is no decision as yet on the meaning of "person dissatisfied" in s40 of the Act. I think the matters mentioned by Ms Branson demonstrate that the appellants are persons dissatisfied, persons whom Parliament would wish, in the circumstances, to have a right of appeal.
15. The expression "person aggrieved" is akin to the expression "persons dissatisfied".
16. Ms Branson commended to us the "careful analysis" by Gummow J of the expression "persons aggrieved" in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1987) 71 ALR 73 at 79 to 81. After considering authorities His Honour there said (at p81):-
"Hence the force of the observations (frequently adopted in
this court) by Ellicott J in Toohey's case (1981) 54 FLR 421
at 437-438; 36 ALR 64 to the effect that the meaning of 'a
person aggrieved' is not encased in any technical rules and
that much depends upon the nature of the particular decision
and the extent to which the interest of the applicant rises
above that of an ordinary member of the public."
17. The reasoning of Gummow J was adopted by the Full Court of the Federal Court in Broadbridge and Anor v Stammers (1987) 76 ALR 339 at 341. In the joint judgment the Court said:-
"In our opinion, the judge correctly overruled the objection
to competency. The respondent had an obvious interest in the
outcome of the claim for relief which differed from the
interests of other citizens. As a practical matter, the
closure of the office meant that the respondent lost his
position at Watsons Bay and his accommodation there. Whether
it was strictly accurate to describe these as 'entitlements'
is not to the point. To 8 adopt the language of Gummow J in
Australian Institute of Marine and Power Engineers v
Secretary, Department of Transport (supra at 82): '...there
flows from the decision...a danger and peril to the
interests of the (respondent) that is clear and imminent
rather than remote, indirect or fanciful, and the
(respondent) has an interest in the matter of an intensity
and degree well above that of an ordinary member of the
public.'"
18. Ms Branson referred to other authority. In Salter and Ors v NCSC (1988) 13 ACLR 253 at pp256-257 Wallace and Olney JJ each speak of the genuine interest which the relevant person or persons must have in maintaining their application. I note the reference by Ms Branson to Onus and Anor v Alcoa of Australia Ltd (1981) 149 CLR 27 and to R v H M Treasury; ex parte Smedley
(1985) 1 All ER 589. I emphasise the words "interest in the matter of an intensity and degree well above that of the ordinary member of the public" which Gummow J found the applicant had in Re Australian Institute of Marine and Power Engineers v Secretary,Department of Transport (supra at p82). The appellants here have an identical type of interest, something peculiar to them and above any interest of ordinary members of the public.
19. Put in simple terms they face the prospect of being shown to be "tell tales". That may not sound serious. But it is. If the appeal fails, if things stand as they are, the appellants may find that the story that they gave out information adverse to a fellow worker will get about in the labour market. The appellants will suffer the scorn (at least) of other workers. I think that the appellants have standing as "persons dissatisfied" to institute and maintain this appeal in the course of which these questions have been referred to this Court.
20. The Court faced an odd situation. We each had a sealed copy of the report of T J Sinclair and Associates. We could not decide whether any part of it was exempt without reading it. Yet we could hardly allow the second respondent, the person who wanted to see the whole report, to see it prior to giving our decision. It is very unattractive to make a decision about information in a document without hearing from all parties concerned. The second respondent could hardly offer an argument about the nature of the information in the document without seeing it. Yet we were constrained to proceed without releasing the document to the second respondent. We could do nothing else.
21. Section 26 of the Freedom of Information Act is a long section. I will not recite it. It gives some protection about release of information in the case of a document "that contains information concerning the personal affairs of any person".
22. I have studied the document (the report). It speaks of some adverse effects suffered in the work place by the appellants. But I do not think that the document contains any information about the personal affairs of the appellants. I cannot accept the argument of Mr McRae that things which the appellants said to Radford are matters which concern their personal affairs.
23. Section 12 of the Freedom of Information Act is:-
"A person has a legally enforceable right to be given access
to an agency's documents in accordance with this Act."
24. The expression "in accordance with this Act", includes the idea of restriction or exemption. All this is dealt with in Schedule 1. That Schedule is entitled "Exempt Documents". The Case Stated asks whether the report or any part of it comes within any category of exemption given in that Schedule.
25. The question asked in paragraph 13.2 of the Case Stated relates to the provisions of clause 9(1) and 13(a) and 13(b) of Schedule 1. Clause 9(1) is:-
"9. (1) A document is an exempt document if it contains
matter -
(a) that relates to -
(i) any opinion, advice or recommendation that has been
obtained, prepared or recorded;
or
(ii) any consultation or deliberation that has taken
place, in the course of, or for the purpose of, the
decision-making functions of the Government, a Minister or
an agency;
and
(b) the disclosure of which would, on balance, be contrary
to the public interest.
(2) A document is not an exempt document by virtue of this
clause if it merely consists of -
(a) matter that appears in an agency's policy document;
or
(b) factual or statistical material."
26. I think that all the information in the report comes within clause 9(1)(a). But in relation to (b) I think that the appeal and the reference to this Court is incompetent. Early in the hearing King CJ said:-
"I would question whether any weighing in the balance of a
matter and exercising a judgment as to whether it is
contrary to public interest is really a question of law. It
doesn't sound like a question of law to me."
27. In my opinion, that "weighing" which must occur in considering clause 9(1)(b) of the Schedule to the Act is not 11 a question of law. In the light of the view which I take of the whole matter I do not elaborate. However, should I be wrong on this issue I say that it would not, in my opinion, be, on balance, contrary to the public interest for the whole report to be disclosed to the second respondent. The public interest would not, on balance, be harmed by the disclosing of the report to the second respondent and by her seeing what the appellants had said to Radford. Perhaps she would dislike or be annoyed by some remarks. But that does not make disclosure contrary to the public interest.
28. In my opinion, we cannot make any finding favourable to the appellants under clause 9 because one leg of it does not raise a question of law. I jump to clause 13(b). I make the same comment as I have made about clause 9(1)(b). Again, there is the question of "contrary to public interest". That is a question of "judgment and discretion" to use the expression of the Chief Justice during argument.
29. Clause 13(a) gives a different protection. No question of public interest is involved. A document is exempt if it contains matter, the disclosure of which would found an action for breach of confidence.
30. In my opinion, clause 13(a) of Schedule 1 is the clause which here answers the question of exemption or not. That subclause is:-
"13. A document is an exempt document -
(a) if it contains matter the disclosure of which would
found an action for breach of confidence;"
31. The report contains matter which was obtained under the promise of secrecy, under a promise of confidence. The seeker promised to keep the information "given" secret, to treat it as given in confidence. The givers of information relied on that promise. WorkCover has attempted to stand by that promise given by the man who was investigating for it. The Ombudsman has prevented that stand. There certainly has been a breach of the promise. Whether the intervention of the Ombudsman would found any defence to any available action at the instance of the appellants need not concern us here. We do not yet get to that stage. We are to say whether disclosure would found an action for breach of confidence. I read "would" as synonymous with "could". It is an objective test. Ms Branson referred us to a number of cases which do demonstrate the importance which the law gives in some circumstances to the promise to keep information given in confidence secret. These cases were concerned with different facts and different legislation than that which we are considering. But they do offer some general guidance to the importance which I mentioned above and generally. The cases are:-
- Murtagh v Federal Commissioner of Taxation (1984) 54 ALR
313
- Attorney-General's Departmentand Anor v Cockcroft (1986)
64 ALR 97
- Re Organon (Australia) Pty Ltd and Department of Community
Services and Health (1987) 13 ALD 588
- Re Boehm and Ombudsman (Cth) (1985) 8 ALN N.29
- Accident Compensation Commission v Groom (1991) 2 VR 322
- In re Pergamon Press Ltd (1971) Ch 388
32. As I say, those cases are not directly in point. But the case on which Ms Branson relied mainly (as did Mr McRae) is in point on the issue of the existence and nature of "an action for breach of confidence". That case is the High Court case of Johns v ASC and Ors (1993) 116 ALR 567. I will not recite the facts. The greatest assistance in my respectful opinion for us comes from the reasons of Brennan J and from the reasons of Deane J in Moorgate Tobacco Co v Philip Morris Ltd (No 2) 156 CLR 414. Brennan J cites remarks of Deane J in his reasons in Johns v ASC. At p576-577 Brennan J says:-
"The condition of confidentiality Prima facie, it is the
privilege of any person who possesses information to keep
the information confidential. That person may wish not to
disclose it at all or may wish to disseminate it or to
authorise its dissemination only for a limited purpose or to
a limited class of persons. In Attorney-General v Guardian
Newspapers (No 2) (1990) 1 AC 109 at 214 - the Spycatcher
case - Bingham LJ said: 'It is a well-settled principle of
law that where one party (the confidant) acquires
confidential information from or during his service with, or
by virtue of his relationship with, another (the confider),
in circumstances importing a duty of confidence, the
confidant is not ordinarily at liberty to divulge that
information to a third party without the consent or against
the wishes of the confider.' The jurisdictional basis or
bases of this principle may not have been finally determined
(116 ALR 567 at 577) but there is certainly jurisdiction in
equity to grant relief against actual or threatened abuse of
confidential information. In Moorgate Tobacco Co Ltd v
Phillip Morris Ltd (No 2) (1984) 156 CLR 414 at 437-8; 56
ALR 193 at 208, Deane J said: 'It is unnecessary, for the
purposes of the present appeal, to attempt to define the
precise scope of the equitable jurisdiction to grant relief
against an actual or threatened abuse of confidential
information not involving any tort or any breach of some
express or implied contractual provision, some wider
fiduciary duty or some copyright or trade mark right. A
general equitable jurisdiction to grant such relief has long
been asserted and should, in my view, now be accepted: see
Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39,
at 50-2; 32 ALR 485 at 491-3. Like most heads of exclusive
equitable jurisdiction, its rational basis does not lie in
proprietary right. It lies in the notion of an obligation of
conscience arising from the 14 circumstances in or through
which the information was communicated or obtained.' Deane J
was speaking of the exclusive jurisdiction of equity to
enforce a duty imposed by equity. The jurisdiction to
restrain the repository of a statutory power from using or
disclosing information obtained in exercise of the power
cannot rest on the same basis. A duty not to use or disclose
information obtained in exercise of a statutory power except
for a purpose authorised by the statute is a duty imposed by
statute, not by equity. Yet the equitable remedy of
injunction is available in appropriate cases to enforce a
statutory duty against a public authority Bradley v
Commonwealth (1973) 128 CLR 557, esp at 575, 581-2; 1 ALR
241; Annetts v McCann (1990) 170 CLR 596; 97 ALR 177.
Jurisdiction to grant an injunction, like jurisdiction to
make a declaration (Dyson v Attorney-General (1911) 1 KB
410; Balog v Independent Commission Against Corruption
(1990) 169 CLR 625; 93 ALR 469) is well established - albeit
the theoretical foundation of the jurisdiction has not been
clearly defined." (Footnote reference to DE SMITH'S JUDICIAL
REVIEW OF ADMINISTRATIVE ACTION (4th ed, 1980), ch 9.)
33. The cases to which Ms Branson referred were cases where information had been obtained for the purposes of the activity carried on pursuant to a statute and under compulsory powers. Here, too, the information was so obtained. The compulsory powers reside in s110 of the Workers Compensation and Rehabilitation Act.
34. There exists, then, an action for breach of confidence. Moreover, as appears from the remarks both of Brennan J and Deane J to which have referred, there is in existence a jurisdiction in equity to grant relief against abuse or threatened abuse of confidential information. I should say that I do not read the expression "action for breach of confidence" in clause 13(a) as if it were speaking only of an action at law commenced by inter party summons (or in some by writ) seeking damages for the tort of breach of confidence or for breach of contract. The phrase encompasses that type of action. But it encompasses actions or suits in equity, too.
35. I think then that disclosure of the information would (read as "could") found an action for breach of confidence.
36. I mention two issues raised by counsel. Ms Branson sought to rely on clause 4 of Schedule 1 and in particular on clause 4(1)(a). I cannot accept this argument. That subclause speaks only of documents which contain matter the disclosure of which could reasonably be expected to prejudice the investigation of any contravention or possible contravention of the law whether generally or in a particular case.
37. Ms Branson said that the disclosure of information provided by fellow employees of the second respondent could prejudice the investigation of the "workers compensation law generally".
38. She suggested that the disclosure might prejudice the free flow of information to WorkCover. But that is not a contravention or a possible contravention of the law. All that was being investigated and all that is reported upon is a claim for compensation under the appropriate legislation and facts relating thereto.
39. Mr McRae referred us to s112 of the Workers Compensation and Rehabilitation Act not by way of relying on it but as something which he thought the Court should note. I do not think that s112 has anything to do with the exempt documents. Section 112 merely imposes obligations on officers of the Corporation and creates offences and penalties for breach.
40. I may say that I was much impressed by many of the remarks made by the second respondent. She offered forceful submissions to suggest that the appellants would not be harmed if the report were disclosed to her in its entirety. Perhaps she is right. But information was given in confidence. It would be a breach of confidence for it to be revealed. An action at law or in equity for breach of confidence is a cause of action known to the law. The disclosure of the information, ie the breach, could found an action at the suit of the appellants. That being so clause 13(a) applies. The report is an exempt document. I would answer the questions asked thus:-
1. Yes. The appellants are within the meaning of s40 of the
Freedom of Information Act persons dissatisfied with the
determination of WorkCover dated 20th May 1993.
2. The whole report of T J Sinclair and Associates dated 7th
February 1992 is an exempt document pursuant to clause 13(a)
of Schedule 1 of the Freedom of Information Act.
JUDGE3 MULLIGHAN J I agree that the questions in the Case Stated should be answered as proposed by the other members of the Court and I agree with the reasons given by Bollen J.
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