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Colakovski v Australian Telecommunications Corporation

Colakovski v Australian Telecommunications Corporation

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Case Copied 17 April 1991 28 min read

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Re: VANGEL COLAKOVSKI
And: AUSTRALIAN TELECOMMUNICATIONS CORPORATION
No. V G254 of 1990
FED No. 170
100 ALR 111
13 AAR 261
29 FCR 429/23 ALD 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Jenkinson(2) and Heerey(3) JJ.

HEARING

MELBOURNE

#DATE 17:4:1991

Counsel for the applicant: Mr T. Hurley

Solicitors for the applicant: George Liberogiannis and Assoc.

Counsel for the respondent: Mr K. Bell

Solicitors for the respondent: Australian Government Solicitor

JUDGE1

This is an appeal from the judgment of a single Judge of this Court (Ryan J.) dismissing an appeal to the Court, under s. 44 of the Administrative Appeals Tribunal Act 1975, from a decision of the Administrative Appeals Tribunal ("the Tribunal") in connection with an application by the appellant under the Freedom of Information Act 1982 ("the FOI Act").

The history of the case commences in 1986 when the appellant received a number of telephone calls to his home, but when the telephone rang and he picked up the handset he heard no voice at the other end. The first occasion on which this occurred was shortly before Christmas 1986. Calls continued until June 1987. Early in January 1987 the appellant asked the respondent to trace these calls and identify the persons who were making them to him. The respondent traced a number of the calls. In some cases the respondent was able to identify a known subscriber's telephone service from which the calls had been made to the appellant's telephone number. Records were maintained by the respondent of the calls which it had been able to trace.
The appellant wished to find out the identity of the "nuisance" caller or callers. He made a request under s. 15 of the FOI Act for production to him of records created by the respondent in the course of investigating the offending phone calls. The respondent refused that request, relying so far as is presently relevant, on s. 41(1) of the FOI Act which provides:

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person)."

In the proceedings before the Tribunal evidence was given by the appellant and by Mr Malcolm Hedges, the Manager of Freedom of Information in the employ of the respondent. Some of Mr Hedge's evidence was given in camera in the absence of the appellant , his counsel and solicitor. In addition the Tribunal gave a direction pursuant to s. 35(2) of the Administrative Appeals Tribunal Act and s. 63 of the FOI Act which in substance prohibited the disclosure to the appellant, his counsel and solicitor of the contents of two documents marked as exhibits 2 and 3 before the Tribunal. Exhibit 2 is an affidavit of Mr Hedges and exhibit 3 is a file note made by an officer of the respondent in the course of investigating the "nuisance" calls to the appellant's telephone…

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.

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Details

Case: [1991] FCA 170
Decision Date: 17 APRIL 1991

CaseChat Overview and Summary

In Colakovski v Australian Telecommunications Corporation, the Federal Court considered an appeal regarding the denial of access to certain documents under the Freedom of Information Act 1982. The appellant, Mr Colakovski, had received numerous silent telephone calls and sought to obtain records created by the respondent, the Australian Telecommunications Corporation, in the course of investigating the calls. The respondent refused to disclose the requested information under section 41(1) of the FOI Act, which exempts disclosure of documents that would involve the unreasonable disclosure of information relating to the personal affairs of any person. The Administrative Appeals Tribunal upheld the respondent's decision, and the appellant appealed to the Federal Court.

The court considered the meaning of "personal affairs" in the context of the FOI Act and determined that the expression referred to matters of private concern to an individual. It was also noted that while some documents may relate to a person's work performance or capacity, they could still contain information about their personal affairs. The court concluded that the Tribunal had not erred in finding that the information in the documents for which exemption was claimed related to the personal affairs of a person.

The court further considered whether the disclosure of the documents would involve the unreasonable disclosure of information relating to the personal affairs of a person. The court held that in making this determination, considerations of public policy against concealing the identity of persons who commit offences under the Telecommunications Act 1975 could be taken into account. However, the court found that these considerations did not compel a conclusion different from that reached by the Tribunal.

The court ultimately dismissed the appeal, agreeing with the Tribunal that the disclosure of the documents would involve the unreasonable disclosure of information relating to the personal affairs of a person, and therefore upheld the respondent's refusal to disclose the requested information under the FOI Act.

Orders