Colakovski, v Australian Telecommunications Commission

No judgment structure available for this case.

JUDGMENT No. ..9-3.6 ... /.."2~Q

IN THE FEDERAL COURT OF AUSTRALIA )
1
VICTORIA DISTRICT REGISTRY

) VG 218 of 1989
)
GENERAL DIVISION )
ON APPEAL FROM THE ADMINISTRATIVE APPEALS
TRIBUNAL
BETWEEN: VANGEL COmOVSKI
(Applicant)

AND : AUSTRALIAN TELECOMMUNICATIONS
COMMISSION
(Respondent)

Coram: Ryan J

RECEIVED

Date : 13 and 14 August 1990 2 3 AUG 1990
Place: Melbourne

FEDERAL AUSTRALIA COURT OF
PRINCIPAL REGISTRY

EX 'TEMPORE REASONS FOR

This is an appeal from a decision of the Administrative Appeals Tribunal ("the A.A.T.") constituted by a Deputy President which was concerned with an application for a review of a decision refusing the applicant access to information in the possession of the respondent, the Australian Telecommunications Commission ("Telecom").

The applicant had complained to Telecom about what have
been called "nuisance" telephone calls to a service for which
he was the subscriber. It appears that with considerable to the applicant's service and, when he answered, no voice was frequency between December 1986 and June 1987 calls were made

heard. From January 1987 when the applicant made his complaint, Telecom traced a number of these "nuisance" calls and in a few instances was able to identify a known subscriber's telephone service from which the call had been made.

To find out the identity of the "nuisance" caller, or the person from whose telephone service some of the "nuisance" calls were made, the applicant made a request under s.15 of the Freedom of Information Act 1982 ("the F01 Act") for

. .

production to him of records created by Telecom in the course of investigating the "nuisance" telephone calls. Telecom refused that request, relying on s.41(1) of the F01 Act, which provides :

"(1) A document is an exempt document if ~ t s disclosure

under this Act would involve the unreaaonable d~sclosure of information relating to the personal affa~ra of any person (including a deceased person)."

In the course of the hearing before the A.A.T., a portion of the evidence of Mr Hedges, the Manager, Freedom of

Information for Telecom, was received in camera in the absence

of the applicant and his counsel. As well, the A.A.T. gave a direction prohibiting the disclosure to the applicant, Mr Colakovski, and his counsel of the contents of two documents identified as exhibit 2, being an affidavit of Mr Hedges, and exhibit 3 being a file note made by an officer of Telecom in the course of investigating the "nuisance" calls to the applicant's service.

By part of his appeal to this Court, the applicant has complained that the decisions that part of the hearing before the A.A.T. take place in private in the absence of the applicant and his legal representatives and that disclosure of evidence in the private hearing be restricted to Telecom and its legal representatives were infected by errors of law. No formal reasons were given by the A.A.T. for the two rulings to which I have just referred. It is clear, however, from what was said in open hearing before the A.A.T. that it made those rulings to prevent the disclosure of the identity of a person who was revealed by Telecom's enquiries as the subscriber for the service from which some of the nuisance calls had been made.
Strang, of counsel for the applicant, accepted that, in the circumstances, the only question of law within the meaning of s.44(1) of the Administrative Appeals Tribunal Act raised by the rulings of the A.A.T. was whether there was
Mx

of the degree of satisfaction contemplated by s.35 of the anything arbitrary or fanciful in the reaching by the A.A.T.

Administrative Ap~ealS Tribunal Act; see, e.g., Perron v The Commissioner of Taxation of The Commonwealth of Australia (1972) 128 C.L.R. 595 at 600-601.
Section 35 of the Administrative Appeals Tribunal Act

provides :
" ( 1 ) Subject to this sect~on, the hearing of a

proceeding before the Tribunal shall be in publlc.
(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

(a) direct that a hearing or part of a hearing shall

take place Ln private and give d~rectrons as to the
persons who may be present;

(b)

give d~rections prohibitrng or restricting the publication of ev~dence given before the Tribunal, whether m public or in prrvate, or of matters contained in documents lodged with the Trrbunal or recerved in evidence by the Tribunal; and

(c)

give directions prohibiting or restricting the disclosure to some or all of the partres to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
(3) In considering:

(a) whether the hearing of a proceedrng should be held in private; or
(b) whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibrted or restrrcted;

the Tribunal shall take as the basis of its consideration the princrple that it is desrrable that hearings of proceedrngs before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Trrbunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearrng should be held in private or why publrcatron or disclosure of the evidence or the matter contained an the document should be prohibited or restricted."

The width of the discretion conferred by that section is
somewhat circumscribed in respect of proceedings before the
A.A.T. under the F01 Act by s.63 of that Act which provides:
"(l) In proceedrngs under this Part, the Tribunal shall make such order or orders under sub-section 35(2) of the Administratrve ADDeals Tribunal Act 1975 as it thinks necessary having regard to the nature of the uroceedinqs and, in particular; to the necessity of avoidrng the disclosure to the applicant of-

(a) exempt matter contained in a document to which the
proceedings relate; or

(b)

information of the kind referred to in sub-section 25(1).

(2) Notwrthstandrng anythrng contained in the Administrative Aweals Trlbunal Act 1975-

(a) the Tribunal shall not, in its decision, or reasons for a decrsion m a matter arrsing under this Act, include any matter or information of a kind referred to in sub-section (1); and
(b) the Trrbunal may recerve evidence, or hear argument, in the absence of the applicant or hrs representative where it is necessary to do 80 in order to prevent the disclosure to the applicant of matter or rnformatron of a kind referred to in sub- section (l)."

The interaction of s.35(2) of the Administrative Appeals Tribunal Act and the provisions of the F01 Act was considered by a Full Court of this Court in The News Corporation Ltd and Others v The National Companies and Securities Commission (1984) 5 F.C.R. 88, where Fox J. observed at page 96:
"In dealing w ~ t h a aubmission that a document is exempt, as with clarms of confrdentialrty or privrlege, a reviewing tribunal, in the absence of a provision such as s35(2) of the AAT Act, would I think be bound to adopt some practical course, at least on an interm basrs, whereby a rrght to access could be determrned w~thout g~ving access. In the end, a claim to exemption may have to be determined, wrthout the applicant having access to all the materlal which the tribunal has and without having access to the documents or a schedule describrng them. Much would turn on the circumstances of the case. This is, however, hypothetical because there is in the AAT Act not only s35(2), but s35(1) and 839, and there are also ss63 and 64 of the F01 Act.

A course often followed rn lit~gation is for access to be granted to counsel, on the footing that he, or he and his

solicrtor, are the only persons to see a document. It is a convenient but dangerous practrce, as it rnvolves the withholdrng from a clrent by his legal representative of information relevant to the lrtigatron. The acceptance of such a course would not, I imagine, be within the ordinary retarner of counsel, and would as a rule need specific instructrons. Counsel relied upon the practrce, as part of his argument, and submitted that the Tribunal had erred rn not following it. An application to the effect mentioned had been made to the Tribunal, but was rejected by it. In the light of the statutory provisions, I doubt whether the Tribunal had power to act in any such way, but it would in any event be a matter for its discretion, and its failure to exercise the discret~on in favour of the applicant is not a matter which would by itself involve an appealable error of law. I should add in this regard that the submission of the applicants depended at several points in drawing a drstinction between 'party' and the legal representative of a party, when considering the statutory language, but in my opinron the distinctron is not

sustainable. 'l

I have examined the two documentary exhibits and the transcript of proceedings in camera on the assumption that the discretion which Fox J., in the passage which I have just quoted, was inclined to doubt, was available to the A.A.T. in the present case.
In the light of that examination I have detected nothing
to suggest that it was not open to the A.A.T. to exercise, in
the way it did, the discretion required to be exercised under

s.35(2) of the Administrative A D D ~ ~ ~ s Tribunal Act, and s.63
of the F01 Act.
Accordingly, the applicant has not made out the ground for review of the decision of the A.A.T. which is specified in paragraph 2 of his further amended notice of appeal.
[After hearing further argument on the remaining issues raised by the further amended notice of appeal, his Honour continued

on 14 August 19901:
I have already given reasons for my rejection of the contention that there was some error of law by the A.A.T. in its refusal to allow counsel for the applicant access to the two documentary exhibits and the transcript of the evidence of
Mr Hedges, which was taken in camera. I proceed now to deal
with the remaining issues in this application.
It was next argued on behalf of the applicant that the A.A.T. had erred in law in concluding that the disclosure of the identity of the subscriber to the service from which some of the nuisance calls were made would involve the unreasonable disclosure of information relating to the personal affairs of that person.
It is appropriate to consider first whether the provision of the name or name and address of a person can ever constitute information relating to the personal affairs of that person. It is clear that a request for information which consists of or includes the name of a person must be made in a context which permits the agency responding to the request to identify that person. Re Wona and Department of Immiaration and Ethnic Affairs (1984) 2 A.A.R. 208 provides another example of such a request which could have been satisfied by the provision of names without more.

In my view the context in which the present request has

been made admits of the possibility that provision of the name of the subscriber to a service from which a "nuisance" telephone call has been made would involve the disclosure of information relating to the personal affairs of that subscriber. The A.A.T. in the present case reviewed the authorities on the meaning of "personal affairs" which were canvassed by a Full Court of this Court in Department of Social Securitv v Dvrenfurth (1988) 80 A.L.R. 533 at 539 and concluded that:
"... in conslderrng whether a person's personal affairs would
be draclosed it rs necessary to consrder whether the matters which would be disclosed are of a private nature relating to the indivrdual, as drstinct from being of a busrnees nature or relating to hrs or her career."

I can detect no error of law by the A.A.T. in thus
postulating the first test which is erected by s.41(1) of the
F01 Act. The application of that first test to the matters
disclosed by the two documentary exhibits and the transcript of Mr Hedges' evidence in camera, in the context of the applicant's request, is purely a question of fact. As another Full Court of this Court said in Gordon Peter Wiseman v The Commonwealth of Australia (unreported 24 October 1989) at p.8:
"The potential application of s.41(1) in the present circumstances is essentially one of fact, rn the one instance, and of fact and degree in the other. Whether the information related to Mrs. Wiseman's 'personal affairs', is, in essence, a queation of fact. No real questron arises as to the constructron of thrs part of s.41(1). As has been said, the Tribunal's characterisatron of the rnformation as related to Mrs. Wiseman's 'personal affairs' was not serrously challenged. The Tribunal's description of the documents was plarnly open to rt on the materral avarlable to us. Indeed, on that material, the Tribunal's characterisatron of the information appears to be correct. At the least, no error of principle is indicated here on the part of the Trrbunal or of the primary judge."

As already indicated, I have examined for myself the two documentary exhibits and the transcript of M r Hedges' evidence in camera. I have seen nothing in those documents to suggest any error of law in the approach taken by the A.A.T. to the resolution of the question of fact identified by the Full Court in the passage just quoted.
The second question which arises in the application of s.41(1) of the F01 Act to the facts of this case is whether disclosure to the applicant of the name of the subscriber would be unreasonable. As to that question, the Full Court in Wiseman v The Commonwealth (suDra) observed at p.9 of its

reasons :
"The second limb of s.41(1) requlres the making of a judgment as to whether the disclosure would be 'unreasonable'. Again, no real questron of principle arises here. Whether or not disclosure would be 'unreasonable' is a questron of fact and degree which calls for a balancing of all the legitimate interests ~nvolved."

The first criticism made on behalf of the applicant of the approach taken by the A.A.T. to this second question was that it failed to take into account the fact that the nuisance calls were made to the applicant and therefore became part of his personal affairs. In my view, the fact that the calls were made to the applicant was always readily apparent to the A.A.T. There is nothing in its reasons to suggest that it failed to take that fact into account.
Counsel for the applicant also criticised the following passage in the reasons for the decision of the A.A.T:

come wlthin the ambit of a person's personal affairs and its "13. I have no doubt that the making of a telephone call can
disclosure may be unreasonable. For instance, if a person makes a telephone call to his or her lover, it is undoubtedly part of his or her personal affarrs; ~t is part of his or her emotronal relationship w ~ t h the other person. It is something whrch he or she may wish not to be known by others; if the relationship is not a matter of public knowledge, then the drsclosure of it would be unreasonable."

I regard that passage as no more than an illustration adopted by the A.A.T. to exemplify how information about the making of a telephone call can relate to the personal affairs of a person and how in certain circumstances its disclosure can be unreasonable. That passage involved no finding of fact relevant to the present case and does not involve any misapplication of the principles of law identified by the Full Court in Wiseman v. The Commonwealth (suDra).
It was next submitted on behalf of the applicant that the

A.A.T. considered that it was unlikely that the applicant
should have to fear for his personal safety or the safety of his property but failed to take into account the possibility that the applicant may unwittingly have contact with the maker of the nuisance telephone calls and may accordingly put that person in a position of trust. By corollary, it was also suggested that, as a result of being left in a state of ignorance about the identity of the telephone caller, the applicant would harbour unjustified suspicions of his associates.

The consideration by the A.A.T. of whether the applicant nuisance telephone calls and threats to his personal safety or had any reason to fear an association between the maker of the the safety of his property was touched on as follows in
paragraph 15 of its reasons:
"Thus in the present case, in coming to a conclusion whether disclosure would be unreasonable, the Tribunal must take into account the applicant's ~ntereat in obtain~ng that information. If there were any reason to believe that the calls were connected with the burglary of his home, that, together with all the other circumstances, might make disclosure not unreasonable. But the dates on which the calls were made were very much later than the burglary and the calls that were made about the time of the burglary. Further, the circumstances of the calls w ~ t h which we are concerned in these proceedings were such that it is most unlxkely that they were in any way connected with it or should cause the applicant to have any fear for his personal safety or the safety of his property."

In my view, that passage indicates that the burglary which the applicant had suffered, and to which the A.A.T. referred in paragraph 6 of its reasons as having occurred on New Year's Day 1987, was adequately present to the mind of the Tribunal. On a fair reading of the passage and having had the advantage, as I said, of an examination of the material which was not revealed to the applicant or his counsel, I am not persuaded that there was any error of law in the treatment by the A.A.T. of that consideration as part of the balancing exercise on which it was engaged in dealing with this application.
It was also argued on behalf of the applicant that the A.A.T. had failed to consider that the nuisance telephone caller had arguably, or prima facie, committed an offence under r.38 o f the Regulations made under the Telecommunications Act 1975 and under s.86 of that Act. Again

the application before the A.A.T. that the possible or it is clear that from the transcript of the public hearing of

probable contravention of those provisions was present to the mind of the Tribunal and I am unable to find that it was a matter that was not taken into account. Nor was it a consideration of a kind that, having been taken into account, would have compelled the A.A.T. to reach a conclusion different from that which it did.

Similar reasoning leads me to reject the attempt by counsel for the applicant to invoke considerations of public policy against concealment of the identity of the telephone subscriber in the circumstances of this case. I am not able to conclude that considerations of that kind were disregarded by the A.A.T. Nor, in my view, could those considerations have compelled only a resolution of the application in favour of the applicant. For all of these reasons the application must be dismissed.
[After hearing submissions from Counsel on the question of
costs, his Honour continued]:

The existence of this litigation and the fact that it has progressed to this stage is due in large measure to aspects of the Freedom of Information legislation which have created expectations in the applicant. Those expectations have, in the event, been disappointed in circumstances in which it has not

which that reasoning has been based.

been possible to expose fully to the applicant or his counsel the reasoning of the A.A.T. or of this Court or the facts upon

In all the circumstances, I consider that the proper course is to make no order as to costs.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment of His Honour Mr Justice Ryan.

Assoc i , - & $ g e t a Date: f.3 d rf & . J""

/ P26 I

Counsel for Applicant: M r M.A. Strang
Solicitors for Applicant: George Libergiannis & Associates
Counsel for Respondent: Mr K.H. Bell
Solicitors for Respondent: Australian Government Solicitor
Date of Hearing: 13 and 14 August 1990
Date of Judgment: 13 and 14 August 1990

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Citations

Colakovski, v Australian Telecommunications Commission [1990] FCA 436

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The applicant had complained to Telecom about what have been called "nuisance" telephone calls to a service for which he was the subscriber. It appears that with considerable	to the applicant's service and, when he answered, no voice was	frequency between December 1986 and June 1987 calls were made
heard. From January 1987 when the applicant made his complaint, Telecom traced a number of these "nuisance" calls and in a few instances was able to identify a known subscriber's telephone service from which the call had been made.
To find out the identity of the "nuisance" caller, or the person from whose telephone service some of the "nuisance" calls were made, the applicant made a request under s.15 of the Freedom of Information Act 1982 ("the F01 Act") for

In the course of the hearing before the A.A.T., a portion of the evidence of Mr Hedges, the Manager, Freedom of	Information for Telecom, was received in camera in the absence
of the applicant and his counsel. As well, the A.A.T. gave a direction prohibiting the disclosure to the applicant, Mr Colakovski, and his counsel of the contents of two documents identified as exhibit 2, being an affidavit of Mr Hedges, and exhibit 3 being a file note made by an officer of Telecom in the course of investigating the "nuisance" calls to the applicant's service.
By part of his appeal to this Court, the applicant has complained that the decisions that part of the hearing before the A.A.T. take place in private in the absence of the applicant and his legal representatives and that disclosure of evidence in the private hearing be restricted to Telecom and its legal representatives were infected by errors of law. No formal reasons were given by the A.A.T. for the two rulings to which I have just referred. It is clear, however, from what was said in open hearing before the A.A.T. that it made those rulings to prevent the disclosure of the identity of a person who was revealed by Telecom's enquiries as the subscriber for the service from which some of the nuisance calls had been made.

of the degree of satisfaction contemplated by s.35 of the	anything arbitrary or fanciful in the reaching by the A.A.T.
Administrative Ap~ealS Tribunal Act; see, e.g., Perron v The Commissioner of Taxation of The Commonwealth of Australia (1972) 128 C.L.R. 595 at 600-601.

(b)	give d~rections prohibitrng or restricting the publication of ev~dence given before the Tribunal, whether m public or in prrvate, or of matters contained in documents lodged with the Trrbunal or recerved in evidence by the Tribunal; and
(c)	give directions prohibiting or restricting the disclosure to some or all of the partres to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

(a)	whether the hearing of a proceedrng should be held in private; or
(b)	whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibrted or restrrcted;

(a)	the Tribunal shall not, in its decision, or reasons for a decrsion m a matter arrsing under this Act, include any matter or information of a kind referred to in sub-section (1); and
(b)	the Trrbunal may recerve evidence, or hear argument, in the absence of the applicant or hrs representative where it is necessary to do 80 in order to prevent the disclosure to the applicant of matter or rnformatron of a kind referred to in sub- section (l)."

s.35(2) of the Administrative A D D ~ ~ ~ s	Tribunal Act, and s.63
of the F01 Act.

The consideration by the A.A.T. of whether the applicant nuisance telephone calls and threats to his personal safety or had any reason to fear an association between the maker of the	the safety of his property was touched on as follows in
paragraph 15 of its reasons:

Counsel for Applicant:	M r M.A. Strang
Solicitors for Applicant:	George Libergiannis & Associates
Counsel for Respondent:	Mr K.H. Bell
Solicitors for Respondent:	Australian Government Solicitor
Date of Hearing:	13 and 14 August 1990
Date of Judgment:	13 and 14 August 1990

[1990] FCA 436

13 Aug 1990