to adjourn further consideration of the respondent’s application for an order under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) to enable the respondent to consider its position in light of these reasons; and
in relation to the ongoing obligation on decision-makers to provide material documents under s 38AA of the AAT Act that:
(a) the provision does not preclude the operation of the substantive rules of law of legal professional privilege and public interest immunity; and
(b) any application for an order of confidentiality under s 35 of the AAT Act concerning lodgement of documents, including surveillance material, under s 38AA is to be made known to any other party to the proceeding.

.........[sgd]............................................................

Deputy President S A Forgie

Catchwords

PRACTICE AND PROCEDURE – whether application for confidentiality order to be disclosed to other party – s 38AA decision-maker has an ongoing requirement to lodge documents relevant to the review – document includes surveillance – legal professional privilege and public interest immunity still apply - the application itself is to be disclosed to other party or parties but not the document over which the confidentiality is sought – matter adjourned

Legislation

Acts Interpretation Act 1901 ss 2, 2B

Administrative Appeals Tribunal Act 1975 ss 2A, 18B, 25, 35, 37, 38AA

Administrative Appeals Tribunal Amendment Act 1977 s 23

Administrative Appeals Tribunal Amendment Act 2005 s 3 and Sch 1 and item 124

Crimes Act 1914 s 10

Freedom of Information Act 1982 ss 54S, 55, 56

Law and Justice Legislation Amendment Act (No.1) 1995 s 3 and Sch 2 and item19

Seafarers Rehabilitation and Compensation Act 1992 s 79

Tribunals Amalgamation Act 2015 s 3 and Schedule 1, cl 87 and cll 73-86

Law and Justice Legislation Amendment Bill (No. 3) 1994

Cases

Australian Postal Corporation v Bessey [2001] FCA 266; 32 AAR 508

Australian Postal Commission v Hayes [1989] FCA 176; (1989) 23 FCR 320; 87 ALR 283; 18 ALD 135; 10 AAR 303

Baker v Campbell (1983) 153 CLR 52

Bienstein v Attorney-General [2009] FCA 1501

Boyes v Colins [2000] WASCA 344; 23 WAR 123

Brown v Metro Meat International Ltd [2000] WASCA 123

Collins v Military Rehabilitation & Compensation Commission [2005] FCA 1862; 147 FCR 570; 225 ALR 558; 89 ALD 51

Commissioner of Police, New South Wales v Guo [2016] FCAFC 62

Commissioner of the Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501; 141 ALR 545

Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49; (2002) 213 CLR 543; 192 ALR 561

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409

Grant v Downs

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buttigieg v Comcare

Details

AGLC: Buttigieg v Comcare [2017] AATA 1002
Case: [2017] AATA 1002
Decision Date: 27 June 2017

CaseChat Overview and Summary

In *Buttigieg v Comcare*, the applicant sought a confidentiality order in relation to a document, which the respondent, Comcare, was required to lodge as part of a review process under section 38AA of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute concerned whether the application for the confidentiality order itself, and the document to which it related, should be disclosed to the other party.

The primary legal issue before the Administrative Appeals Tribunal was whether the applicant's application for a confidentiality order, and the surveillance material to which it pertained, should be disclosed to Comcare. The Tribunal was required to consider the interplay between the obligation to lodge relevant documents for review and the potential application of legal professional privilege and public interest immunity.

Deputy President Forgie P reasoned that while the section 38AA decision-maker has an ongoing requirement to lodge all relevant documents, this obligation does not override established legal principles such as legal professional privilege or public interest immunity. The Tribunal determined that the application for the confidentiality order itself was a procedural matter that should be disclosed to the parties involved. However, the document over which confidentiality was sought, namely the surveillance material, was not to be disclosed to the other party at that stage. The matter was subsequently adjourned.

Orders