Colakovski v The Australian Telecommunications Commission

[1991] HCATrans 232

..

"I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M21 of 1991

B e t w e e n -

VANGEL COLAKOVSKI

Applicant

and

THE AUSTRALIAN

TELECOMMUNICATIONS COMMISSION

Respondent

Application for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

Colakovski 1 30/8/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 1991, AT 10.23 AM

Copyright in -the High Court of Australia

MR T.V. HURLEY: If it please Your Honour, I appear with

MR M. STRANG on behalf of the applicant in this

matter. (instructed by George Liberogiannis &

Associates)

MR K.H. BELL: If the Court pleases, I appear on behalf of

the respondent. (instructed by the Australian

Government Solicitor)

DAWSON J:	Mr Hurley.
MR HURLEY:	Your Honour, this is an application for special

leave to appeal from the decision of the Full Court

of the Federal Court. We seek to raise the

question by way of special leave as to whether the

identity of the subscriber to the

telecommunications system who makes nuisance calls

to another subscriber, whether that identity is

protected as a personal affair within section 41(1)

of the Freedom of Information Act.

Your Honour, we have submitted to the Court

some material in these folders including a copy of

the Freedom of Information Act.

TOOHEY J:  Mr Hurley, is that entirely correct to say that

the question is one as to identity? I accept that

that is primarily what was involved but there seems

to be underlying the decision of the Full Court of
the Federal Court, the notion that not only

identity but the reasons for making the calls might

be disclosed by the material to which access was

sought.

MR HURLEY:	We submit, Your Honour, that the actual name of the subscriber from which the calls came is the
fact to which access to - the information to which
access is sought.  The fact that that fact together
with other information that may or may not be in the possession of my client would lead to a conclusion does not change the characteristic of
being a public affair of that service and not a the name and number of the emanating service as private affair of that service.
TOOHEY J:	Do you mean the documents could be edited if

access were granted so that all that remained was

the number of the telephone service from which the

calls were made and the identity of the subscriber,

I suppos&, not necessarily the identity of the

caller.

MR HURLEY:  No, Your Honour. If access was granted to the

service and the name in which it was held, those
two facts are not personal affairs, they are in the

public domain, and the fact that other matters

might be inferred from that do not work backwards

Colakovski 2 30/8/91

to make those facts other than personal affairs.

We submit that that is the point at which we would

seek to analyse Mr Justice Lockhart's reasoning in

the appeal book at page 38. He begins,

Your Honour, at line 3 by asserting:

There is a real question as to whether

the name and telephone number of a person can

answer the description of "information

relating to the personal affairs" of that

person under s.41(1) -

and on behalf of the applicant - the applicant

agrees with that observation.

Viewed as an abstract conception I would be

inclined to the view that it could not, but

such questions are not considered by Courts in

the abstract. The present case must be

approached on the basis that the relevant

documents containing the deleted material

state the names, addresses and telephone
numbers of persons making the calls or of the

subscriber.

We would take the Court to "or of the subscriber".

Plainly enough it would be revealed from the documents when the telephone calls were made -

which, of course, the applicant submitted, were

already known -

the telephone number from which they emanated,

the name of the subscriber -

which is the material that is sought -

and, at least in some cases the name of the

caller and perhaps a pattern of telephone

calls.

The name of the caller, Your Honour, is not within

the name of the subscriber or the number.

His Honour continues at line 16 -

The words "relating to" or "in relation

to" are of the widest import and in the
context of s.41 it is enough that the

information relates to a person's personal

affairs. It is plain that when one has regard

to the information contained in confidential

exhibits 2 and 3, the revelation of the

information in the documents for which

exemption is claimed (exhibit 1), would

reveal, not only the identity of the caller

and subscriber -

Colakovski 30/8/91

well, Your Honour, the access is sought to the

telephone number and name of the subscriber -

but the reasons.

We submit the introduction of the "but the reasons"

introduces into the definition of what are personal

affairs the effect of releasing the personal

affairs in association whether with other

information that the applicant or others may or may
not have and, in our view, has been erroneously

worked back into the definition of what are

personal affairs and, we submit, in the context of

where a call is made from one subscriber to

another, the identity of those two persons is the
personal affairs of both of them and it is a joint
personal affair, if we can put it like that, and

not one of them separately.

DAWSON J:  The Federal Court had the confidential exhibits

before them, did they?

MR HURLEY:  Yes, Your Honour, they did at first instance and on appeal.

TOOHEY J: Could I just ask you another question. You say

they had them before them.	Did the court make use
of them?

MR HURLEY:  Yes, Your Honour. They read them, Your Honour.

That is when it became apparent that the matters that are discussed in the first pages of the

judgment as to the difference between what was an

exhibit before the tribunal that was confidential

because the tribunal had ordered it be confidential

and what was the disputed documents or those

exhibits in which the disputed information

remained.

Your Honour, we submit that the path that this

matter has taken to the Court reveals different

approaches have been adopted in the proceedings to

date. If I can take Your Honour to

Mr Justice Ryan's reasons at page 17 of the appeal

book at line 6, His Honour observes there, having

set out the reasons in italics, an observation of

the tribunal from which appeal was made to him:

I can detect no error of law by the AAT

in thus postulating the first test which is

erected bys 41(1) of the FOI Act -

which was whether or not the material contained

personal affairs.

By contrast, Your Honour, if we can take

Your Honours to page 37A of the appeal book at

Colakovski 4 30/8/91

line 20, the judgment of Mr Justice Lockhart with

whom Mr Justice Jenkinson concurred, His Honour,

having set out the same passage of the tribunal

that Mr Justice Ryan referred to, observed that:

In my view this poses too narrow a test.

However, notwithstanding that the Tribunal applied this test, it reached the conclusion that the relevant documents satisfied the

statutory description ins 41(1) of documents

which contained information relating to the

"personal affairs" of a person.

We submit that the difference in the tests applied

between the tribunal and the judge at first
instance and that accepted by Mr Justice Lockhart

and Mr Justice Jenkinson reveal that there is an

issue as to the interpretation of section 41(1) of
the Freedom of Information Act as to the

interpretation of the phrase "personal affairs" in

that Act and where it also appears in the Victorian

Freedom of Information Act.

TOOHEY J: There seems to have been a test applied earlier

on in terms of whether the information was known or

may otherwise be obtained, but that seems to not

have been adopted by the Full Court.

MR HURLEY:  No, Your Honour, we would urge that the correct

test is that applied in the decision of the Federal

Court in Young v Wicks which is in the material at

tab 4, but the relevant part is set out in the

judgment of Mr Justice Lockhart in the appeal book

at page 31 at the top of the page, in the

observations of Mr Justice Beaumont in Young v

Wicks. The applicant, who was a pilot - a

Queensland State public servant but held a pilot's

licence:

The applicant, it is true, is the subject of

the documentation but the documents are

concerned exclusively with the public
regulation of air navigation.	The result is

that the documents have a public, rather than

a private, character.

We submit that those observations applied to this

case would reveal that generally the material that

is the subject of the request are the results of

tracing activities by the respondent as to a

nuisance caller and those documents are of a public

rather than a private character and that it is,

therefore, submitted that if the observations of

Mr Justice Beaumont were applied, that a different

conclusion would have been achieved by the tribunal

at first instance and by the Full Court.

Colakovski	30/8/91
DAWSON J:	Why are not the adoptions here of a public

character?

MR HURLEY: Because, Your Honour, they are generated in

investigating an abuse of the telecommunications

system. They are the result of the respondent's

tracing activities, we understand, pursuant to the

telecommunications and deception legislation as in

force at various times which - - -

DAWSON J: It is because they are the internal documents of

a public utility, is that the reason?

MR HURLEY: That have been gathered, Your Honour, in

investigating a public concern, to wit, nuisance

telephone calls. They are not, as it were, simply
the name and address of the subscriber or of all

subscribers in a suburb. They are documents that

have been generated by the respondent in response

to a request to investigate nuisance phone calls.

TOOHEY J: That would not necessarily answer the question,

would it, Mr Hurley? I mean, it may be one thing

to say that some of this documentation, perhaps all

of it, is concerned with the efforts of Telecom to

trace the source of the nuisance calls, and one can

see that that might have a public character, but

you are not really interested in that. You are

interested in the end result, the name and number

that were disclosed by those inquiries. Do you not

still have to meet the test? Is the name and

number, which really is all you are interested in,

part of the personal affairs of someone?

MR HURLEY:  We submit, Your Honour, that the name and number

of a person is not within their personal affairs.

It may be an identifying characteristic but it is

not within their personal affairs and it is
definitely, in our submission, not within their

personal affairs when it is found, as a result of

inquiry, documents that record an abuse of that

person's telephone service.

TOOHEY J: Yes, well, that has its own difficulties,

perhaps. In a sense, the more the service is

misused, the more it might relate to the personal

affairs of the person who made the call; perhaps

not in the case of no-voice nuisance calls, but if

someone was ringing up another person on the

telephone and being abusive or making obscene calls
and so on, in a situation in which there was some

relationship between those persons - I mean, it

might be that, rightly or wrongly, it falls within

the personal affairs of that person.

MR HURLEY: With respect, Your Honour, we would submit, that

the name and telephone number of someone is not

Colakovski 6 30/8/91

within their personal affairs. The reasons for

which they make their calls might be.

TOOHEY J:  No, well, I understand that, but you put a gloss

on it and that is what prompted my question. You

were saying it is not just the name and number but

the fact that the service is being misused.

MR HURLEY:  Your Honour, it is the fact that the service is

being misused which has led to the documents being

generated which gives them, in our submission,
their public character, but our primary submission

is that the name and telephone number of a person

is not within their private affairs.

TOOHEY J:	I understand that submission.
MR HURLEY:	Your Honour, we submit that in relation to the

different views that are expressed between the

tribunal, the primary judge, and

Mr Justice Lockhart with whom Mr Justice Jenkinson

agreed, we also observe at the appeal book at

page 50, His Honour Mr Justice Heery at lines 5

to 10 also, in his reasons:

If the case did not go beyond the first

level -

which he postulates beforehand is the name and

number of a telephone subscriber -

only that information might be said to

disclose information relating to the personal

affairs of a person.

We submit that the interpretation of this section

of the Freedom of Information Act leads to the
conclusion that the name and number of the

subscriber is not within the operation of their

personal affairs and that that is also ascertained
by recalling, Your Honour, that if this call had

emanated from a corporation, as corporations do not

have personal affairs on the authority of the

National Companies and Securities Commission v News

Corporation which is referred to in the reasons,

then my client would have access to the name and
number of the subscriber, being a corporate
subscriber and a corporate number and, we submit,

that leads to an inconsistency.

The third point, Your Honour, is that the Act

also provides for the amendment in section 48,

amendment of personal records relating to personal

affairs and, we submit, that as a person's name and

telephone number cannot be amended but they are

facts, that that promotes the view that the name

and number of the subscriber are not within their

Colakovski 7 30/8/91

personal affairs either in section 48 or in

section 41(1).

DAWSON J: 

Mr Hurley, I suppose minds can differ on the

question of what is a personal affair and what is
not, but is there anything wrong with the test
which was applied by the members of the court?

MR HURLEY:  Yes, Your Honour. We submit that it is

illustrated by the observations of

Mr Justice Lockhart at page 38 of the appeal book,

where he starts at lines 3 to 9 in the abstract:

as to whether the name and telephone number of

a person can answer the description of

"information relating to the personal affair".

We submit, with respect, that the error that

His Honour made is to introduce at line 23 that by

the fact of releasing that information - the name
and number - the releasing of that information
would release personal affairs. It is submitted
that releasing the name and telephone number of its
own releases only the name and telephone number and
whether that information in connection with other

facts leads to inferences or conclusions does not

reflect upon whether the name and telephone number

are within the personal affairs.

We submit that the introduction by His Honour

of whether releasing the number and subscriber's
name would reveal not only the identity but

also - we submit the error is the "but also" that

His Honour refers to, and it is also referred to by

Mr Justice Ryan and - - -

DAWSON J: But is there any general principle involved in

all of that?

MR HURLEY:	We submit, Your Honour, that there is a question of principle as to the interpretation of this Act.
affects the telecommunications system and it - It is a matter of public importance because it
DAWSON J:	What is the matter of general principle that you

discerned?

MR HURLEY:  Your Honour, the right of people who received

nuisance telephone calls, their right and position

in relation to gaining access to the source of

those calls so that they may do something,

particularly in a context where no action has been

taken by the relevant authorities. We submit that

is the principle, the construction of this Act. It

also has the effect, Your Honour, as to the general

construction of this Act which, we submit, has

revealed different conclusions at the levels this

Colakovski 30/8/91

case has revealed as it has moved through the

different stages to arrive at this point. In other

words, the difference between the test posed by the

tribunal and the judge at first instance which is

disagreed with, in our submission, by the Full

Court by Mr Justices Lockhart and Jenkinson. So

the construction of the section, Your Honour, is,

we submit, of general importance.

Your Honour, the other point that we raise is

set out in the materials. It is the difference
between the confidence that reposes in telephone

conversations which has been, on one authority, not

discerned in England. If I can take Your Honour,

in the materials, to the decision of the

Vice Chancellor Sir Robert Megarry, in Malone v

Commissioner of Police of the Metropolis, at

tab 10 - the blue tag, Your Honour. His Honour was

there concerned with generally the right of the

English police to delegate telephone tapping, as it

were, to the post office. His Honour generally

observes in the headnote, at page 620 in

paragraph (ii), that there is no right of privacy

to:

the holding of a telephone conversation -

and His Honour observes in the decision at page 633

between lines e and f - Sir Robert Megarry

indicates the situation in which:

Extension lines, private switchboards and

so-called 'crossed lines', for example, all

offer possibilities of being overheard.

He generally rejects the submission that there is

confidentiality reposing in telephone

communications. We submit that in so far as this

case raises the question as to the identity of

persons making telephone conversations or the

source from which telephone communications come is

Court is not consistent with the law as revealed in	raised, that the conclusion reached by the Federal
this decision of Malone v Commissioner of Police
(No 2). We submit that that is another,
Your Honour, of public importance.

TOOHEY J: It would be right to say, would it, Mr Hurley,

that the object of the Act is to give the citizen

access to documents in the possession of government

in so far as those documents might bear upon that

person's relationship with government, employment

by government and the like? In the ordinary

situation - and I do not say this is necessarily

outside it - it would not relate to matters

touching persons not connected with government.

Colakovski	9	30/8/91
MR HURLEY:	No, Your Honour.	It is only when the government

has obtained that information that it enters the

agency, so no, Your Honour, it is only when the

information has been submitted to the agency or, in

this case, in our submission, generated by the

agency, that it exists at all.

Your Honour, that is also revealed in

section 41(2) of the Freedom of Information Act

which limits the right of access to information

relating to the affairs of the person making the

request. So, Your Honour, it is submitted that in

so far as that section gives the person who is

affected by the information access to it, it moves

against the prohibition in section 41(1).

DAWSON J:	How do you apply subsection (2)?
MR HURLEY:	Your Honour, because if the concept of relating to a person is given a broad operation in
section 41(1), it is submitted it should also be
given a broad operation in section 41(2).
DAWSON J:	And?
MR HURLEY:	So that if the personal affairs of the caller

are protected by the confidentiality in

section 41(1), it is submitted that the affairs of

the recipient should be given - - -

DAWSON J:	So you say the information relates to the personal affairs of the applicant or - not, personal affairs, is matter relating to the
applicant, yes.
MR HURLEY:	Yes, Your Honour, but our principal submission,

and the reason for which special leave is sought, is that the Full Court, by not accepting that the identity of a telephone subscriber and number of a

source from which nuisance calls have been detected

as emanating, erred in its interpretation of

personal affairs within that section of the Freedom
of Information Act.	Your Honour, it is for those

reasons that we seek special leave.

DAWSON J: Thank you, Mr Hurley. Yes, Mr Bell.

MR BELL:  Your Honours, special leave should be refused

because the case was decided on its own facts,

facts which are unique, and because the only

possible point of principle that might arise is one

for which this case is a bad vehicle to resolve.

DAWSON J:  Why is it?

MR BELL: Because, Your Honour, the point of principle can

only be, if it be one, the difference of emphasis

Colakovski 10 30/8/91

to which Mr Justice Lockhart referred. That

difference of emphasis was one, as he characterized

it, whereby previous courts had emphasized the

necessity for there to be a private element before
information can relate to the personal affairs of a
person, whereas, as he and the other learned judges

of that court who agreed with him decided, that

private element need not exist for information to
be information relating to the personal affairs of

a person.

In the instant case, Your Honour, the tribunal

decided that according to the test which His Honour

not preferred, the one that there be a private
element, the instant information was information

relating to the personal affairs of a person,

namely, the caller, and in reaching that fact

finding the tribunal had regard to confidential

evidence which satisfied it that the information

that was sought related not only to the identity of
the caller but also carried along with it other

information which would automatically be disclosed

if that identity were disclosed.

TOOHEY J:	But is that right?
MR BELL:	Yes.
TOOHEY J:	Is it not possible to carry out an editing

process?

MR BELL:  No.

TOOHEY J: After all, the only information that now appears

to be sought is the number of a telephone service from which the calls emanated and the name of the subscriber.

MR BELL:  Your Honour, it was found not to be possible by

the tribunal, who had decided the case at first

instance, to separate out the matters to which

Your Honour has referred from the other matters

which would only be understood by a reference to

the confidential evidence.

TOOHEY J:  I do not understand that. The applicant might be

content with just two pieces of information; the
number of the service and the name of the

subscriber.

MR BELL:  The applicant would be, and has said so,

Your Honour, before the Full Court, before

Mr Justice Ryan and, indeed, before the

Administrative Appeals Tribunal.

TOOHEY J: Well then, how is it an answer to that request to

say, "Oh well, there's other information which, if

Colakovski 11 30/8/91

revealed, would assist in identifying such matters

as the reason why the calls were made"?

MR BELL: Because, Your Honour, the essential question is

whether or not the information sought, and let it

be assumed that the information sought is the
identity of the subscriber and the telephone number
of the caller, is information relating to the
personal affairs of a person and it was found
necessary to receive evidence in confidence in

order to answer that essential factual question,

and it is the fact that it was a question of fact

that I emphasize in answer to Your Honour

Mr Justice Toohey's question. In other words,

Your Honour, it is not possible to decide the question of fact whether the name of the subscriber

and the telephone number of the subscriber is or is

not a matter relating to his or her personal

affairs without receiving evidence in confidence to

answer that question.

DAWSON J:  We are operating a bit in the dark there, are we

not?

MR BELL:  You are operating in the dark, Your Honour the

Presiding Judge, and since this Court is a court of

fact, I have not yet invited you to view the

confidential evidence, but if it were necessary in

order to decide some question of law or some

special leave point in order to do so then the

evidence is available for the Court's perusal on

the same basis, we would submit, as the previous

two courts and the tribunal received it.

TOOHEY J: But has the Full Court, or the primary judge, or

the tribunal said that it is not possible to
isolate those two pieces of information without

disclosing other matters such as the reasons for

making the calls?

MR BELL: That is precisely what was said by the

Administrative Appeals Tribunal. His Honour

Mr Justice Ryan confined himself to the question -

DAWSON J: Perhaps you could take us to the passage.

MR BELL: At the appeal book on page 5, in paragraph 12, the

learned Deputy President says this in answer to a

submission that all that was being sought in the

case was the name of the person who made the calls,

which is the same submission made today:

I am satisfied that that approach to the

matter is wrong. The information which is

being sought in this case is not simply the

name of a person or his or her telephone

Colakovski 12 30/8/91

number, but the identification of that person

as the person who made the telephone calls to

the applicant's number. If access were given

to that information, what would be disclosed

would be not only that that person made a

number of telephone calls to the applicant but
the circumstances in which he or she made
them. Whether the information relates to his
or her personal affairs depends, therefore, on

those circumstances, that is to say, how and

why the calls were made.

DAWSON J: Speaking for myself, I find that very difficult

to follow without the information which -

MR BELL: Perhaps so, Your Honours, and if that be so then I

invite Your Honours to look at the information

which I am prepared to tender.

DAWSON J: Yes, very well.

TOOHEY J: But it being information that is not available to

the applicant?

MR BELL:  I am afraid not, Your Honour.

TOOHEY J: That is a bit tricky, is it not?

MR BELL:  Your Honour, it is a difficulty, but it was a

difficulty that was the subject of an appeal point

before His Honour Mr Justice Ryan. The fact that a

confidentiality order had been made precluding

access to the confidential evidence by the

applicant's counsel was appealed from and

determined in favour of - - -

TOOHEY J: Could I just take you back to that paragraph 12

to question whether you may not be drawing too much

from it, Mr Bell. It reads:

The information which is being sought in this

case is not simply the name of a person or his

or her telephone number, but the

identification of that person as the person

who made the telephone calls to the

applicant's number.

Now, I do not want to put this on too refined a

basis, but that is not quite the way in which

Mr Hurley put the matter. He said that all he was

seeking was the number from which the calls

emanated. True enough, it might not be a very big

jump to infer who made the calls, but that is

another question, is it not? What is being sought

is the number and the name of the subscriber.

Colakovski 13 30/8/91

MR BELL: Indeed; both questions of fact, Your Honour, I

would emphasize.

TOOHEY J:  Maybe, but is it right to say that the

information that is being sought is the

"identification of that person as the person who

made the telephone calls"? I mean, it may turn out

to be a boarding house or - - -

MR BELL:  It might be, Your Honour, and then again it might

turn out to be the caller, as to which the facts do
not reveal on their present state. But,

Your Honour, the Full Court decided the matter the

same way - - -

DAWSON J: But can I just keep you to that passage for a

moment. How would it be that the revelation of the

name, if you like, and number of a person would
reveal the circumstances in which the call was

made?

MR BELL:  Your Honour, again I cannot answer that question

without going to the confidential evidence because

it is only by reference to that evidence that the

answer can be sensible.

DAWSON J:  Can you not give me some example that is not this

particular case?

MR BELL: Yes, I can give you an example, Your Honour,

though perhaps not one that is directly on point.

Let it be assumed that the government has a

register of people who had AIDS. Let it be assumed

that the name of a person is sought as information

held by the government on that register. Now, of

course, the name would appear in connection with the having of the disease. The name alone might not be - - -

DAWSON J:  The name and number would not reveal that.

MR BELL:  The point I am making, Mr Justice Dawson, is that

there is a connection between the fact of the

information relating to persons who have AIDS and

the fact of the register having a name at all.

Now, in that case, access to the name - - -

TOOHEY J: But that is the only purpose of the register, is

to register persons who have AIDS.

MR BELL: Yes, but the question is, Your Honour, whether or

not the name in that circumstance would relate to

the personal affairs of the person because if it be

so, then it would be exempt. Now, in like manner

to the way in which the tribunal and the courts

below have addressed the case in point, one would

say that the giving access to the name would carry

Colakovski 14 30/8/91

with it the information that the person had AIDS,

such as to make the name information that was

personal to the person, and therefore exempt.

Other examples might be given such as, for example,

access to a register that a person is adopted.	Or
pick any information that is - - -

McHUGH J: But what this case comes down to then, is it, is that to give the name and telephone number of this

person in the context of this particular document
is the disclosure of information relating to the personal affairs of that person, only because it

would reveal, in that context, that that person had

made the call?

TOOHEY J: Well, with respect to Justice McHugh's question,

who is the "that person", because is not that the point that what is being asked for is a telephone

number and the name of the subscriber. Now, it may

be a matter of ready inference, depending on the
circumstances, that the subscriber is the caller.

It does not necessarily follow, of course.

MR BELL:  No, Your Honour, but that is the question of fact

that was before the tribunal of fact finding.

TOOHEY J: But it is not just a question of fact, is it? If

it is possible to say - and I appreciate that you
say it is not, in the circumstances of this case -
that the only matter in issue is the number of a

telephone service and the name of the subscriber,

that might raise a real question as to what is

meant by "personal affairs" in section 41(1) of the

Act.

MR BELL:  If that were the agreed facts and there was a

point of construction that arises as to whether that agreed fact falls within the section, then

yes.

TOOHEY J: Well, why cannot the parties agree that fact?

MR BELL: Because there are more facts, facts which by their

very nature cannot be agreed because they cannot be

known. Now, that is a matter of regret, but it is

a matter that has been the subject of judicial

determination by His Honour Mr Justice Ryan and was
not challenged before the Full Court and is not

challenged in this place, naturally.

McHUGH J: But supposing that all that was disclosed was

that the telephone number was a particular number

subscriber to which was a barrister's clerk.	Now,
would that be a breach of the section?

MR BELL: If it were simply that, then the subscriber's

number is a business number and would not be likely

Colakovski 15 30/8/91

to be one that would constitute information of a

personal kind, but let Your Honour's example be

otherwise, that it be a domestic number of

somebody, perhaps the applicant's mother or the

applicant's aunt or something personal to him,

would that be personal? And let it be assumed that

it not carry with it any other imputation as it is

said in the instant case it does, that would raise

squarely the question, the narrow question, whether

or not name alone and number alone of a subscriber

is personal within section 41 of the Freedom of

Information Act.

DAWSON J: But you say this case does not raise that - - -

MR BELL: This case does not do that.

DAWSON J: It raises something else, we know not what.

MR BELL: It raises something quite different and the

something quite different is that the confidential evidence establishes that the name carries with it
other information which is definitely personal and

which would automatically be disclosed and which

furthermore should not be disclosed, according to

the "reasonableness" test which is the second

element of section 41.

Now, that is a different question to the one

that Your Honour Mr Justice McHugh asked and that I

have redefined.

NcHUGH J: Yes.

MR BELL:  The case really is one like the examples which I

have given, with respect, and that is that one

where something else which cannot be known,

regrettably, to the applicant and his counsel is

carried with the identity and the number alone

which makes the matter plain, that is does make it

plainly information relating to the personal

affairs of the individual.

TOOHEY J:  What you appear to be saying, Mr Bell, is that in

other circumstances it may well be that the
disclosure of the number of a telephone service and
the identity of the subscriber would not constitute

the personal affairs of that person - - -

MR BELL: Possibly not, Your Honour.

TOOHEY J:  - - -but in the circumstances of this case, they

do.

MR BELL: Yes, they do.

Colakovski 16 30/8/91

McHUGH J:  So that means there is something about either the

name of the subscriber or the number itself

which - - -

MR BELL:  Which would - and I have to express myself

carefully - that carries with it something else

which makes the matter beyond doubt.

DAWSON J:  And you say the courts below found that as a

fact.

MR BELL:  They did positively find that and, with respect, I

rely upon what the learned Deputy President said at

paragraph 12 on page 5.

TOOHEY J:  Is there an echo of that in what was said by the

primary judge, Mr Bell?

MR BELL: Yes, there is, Justice Toohey. While it is

present to mind can I go to the Full Court first,

and come back to the primary judge. At page 38

His Honour Mr Justice Lockhart, with whom the other

two judges agreed, put the matter as he did at

line 20 and beyond. His Honour Mr Justice Ryan at

page 15, lines 1 to 5, refers to the fact that he

examined the exhibits and the evidence and found no

reason to doubt the order made by the tribunal to

make them confidential. Perhaps he did not go

quite so far as the Full Court did in relation to

the other matter. He makes the relevant decisions

at page 16 at about line 17 where he confines

himself to saying that the finding which he
regarded as one principally of fact was open to the

tribunal. Page 17, at about lines 27 to 33, where

he said there was no error of law evident in the

tribunal's approach, having examined the evidence

for himself. As I say, the Full Court went

somewhat further.

So the case is not one simply of access to

name and number but to other things, too, which
make the matter plain, in my submission.	My

learned friend sought to argue that the case of

Malone applied to establish the proposition that

there was no confidence in a telephone call. That,

with respect, is a case that does not concern the

Freedom of Information Act, either in England, if

there be one there, but certainly not in Australia.
In any event, the case has to be assessed against
the subsequent case of Marcel v Commissioner of

Police of the Metropolis, (1991) 2 WLR 118, which

is a decision of the Vice-Chancellor's successor,

Sir Nicholas Browne-Wilkinson.	I hand a copy of
the decision to the Court.

TOOHEY J:  Does it bear on the construction of the Act?

Colakovski 17 30/8/91

MR BELL: It does not bear on the construction point. It

amounts to the proposition that information
obtained by the police, in the discharge of their

public duties under an Act permitting them to

investigate, cannot be disclosed to third parties

and an obligation of confidence does attach to that

information which, indeed, can be enforced through

injunction.

If the Court pleases.

DAWSON J:  Thank you, Mr Bell. Yes, Mr Hurley.

MR HURLEY:  Your Honour, I only rise to repeat the

submissions I made earlier, that releasing the name

and telephone number releases no more than that.

If those two facts lead to conclusions elsewhere, then that is a product of other material.

TOOHEY J:  No, but that is not the way that it is being put

by Mr Bell, Mr Hurley. It is that the disclosure

of that information necessarily carries with it, in

a way that we do not understand because we have not

seen the documents, but the way that it is
expressed by the Full Court at page 38, namely that

the revelation of that information reveals:

not only the identity of the caller and

subscriber, but the reasons asserted for the

making of the telephone calls.

I must say I do not, myself, see quite why an

editing process could not be carried out, but we

have been assured that it cannot be and we really

have to go on that basis.

MR HURLEY:  If I can take Your Honours to section 22 of the

Freedom of Information Act which allows for the

deletion of exempt matter, if at the end of this,

Your Honour, what was released to my client was a

piece of paper like page 38 of the appeal book with

everything blacked out except the telephone number

and the name of a subscriber, that is all that

would be released to my client and it is submitted

that, looking at the piece of paper, all you would

see on it is the name of the subscriber and a

telephone number.

TOOHEY J: That may be, but we are told that there is

something about that information, which we can only

begin to guess, that would necessarily reveal other

matters.

MR HURLEY: Well, Your Honour, it could only be from the

name, and a person's name is a person's name. What

the name carries with it is something that does not

arise from release of the name but from something

Colakovski 18 30/8/91

already associated - a set of facts already

associated with the name.

TOOHEY J: Yes, but do you not see, Mr Hurley, that what you

have to face is not simply a decision by the Full

Court that the disclosure of the number of a telephone service and the subscriber constitutes the personal affairs of a person, but in the circumstances of this case that the disclosure of that information inevitably carries with it other information which does relate or which, in

totality, relates to the personal affairs of that

person. That is the real stumbling block you have.

MR HURLEY:  We submit that all that is sought under this

Act, and all that could be released by the

respondent is a name and a telephone number, and

that if other information flows from that, that is

not the information that is being released and that

a name and a telephone number, with respect we

submit, as we have, of a subscriber are not

personal affairs.

McHUGH J: But in the old language, as I understand it, it

arises not by inference but by implication. In

other words, in the name itself or perhaps in the

number itself there is an implication in the

language itself which reveals the material relating

to the personal affairs of the person.

MR HURLEY:  Your Honour, all that is sought in relation to

the person is the subscriber's name and telephone

number and that is the only information, in our

submission, that the respondent has. No other

information is sought, and if all that came out was

a piece of paper with a name and telephone number

on it, we submit that that fact on its own reveals

no more than that fact. It may lead to other

conclusions, but that is not sought, and it is

respectfully submitted that the Freedom of

Information Act has not been properly construed if

by looking at the personal affairs it, in our

submission, creates some sort of self-fulfilling
prophesy; that if to release a fact leads to other

facts, if to release fact (A) leads to fact (B)

being released which is a personal affair, then

fact (A) must be a personal affair. It is

submitted that it is in error to work back like

that and to raise the status of a person's name and

telephone number higher than that fact is. And it

is submitted that the fact of name and telephone
number is not within section 41(1), or (2) for that

matter, a personal affairs. Other matters may be,

Your Honour, but the name and telephone number are

not.

Colakovski 19 30/8/91

I do not believe that I can take it any

further, Your Honour, except to say that the facts

of this matter are either - we can take the facts

no further, Your Honour, except to say that that in

itself is an interpretation of the section which we

submit is not according to the purpose for which it

was enacted. We therefore respectfully submit that

special leave be granted.

DAWSON J: In other circumstances, this application may have

raised a question of principle suitable for the

grant of special leave. But having regard to the

circumstances revealed in the judgments in the

court below, it appears that the case does turn

upon its own particular facts and it is not a

suitable vehicle. Special leave will therefore be

refused.

MR BELL:	We apply for costs.
DAWSON J:	Can you say anything about that, Mr Hurley?
MR HURLEY:	Your Honour, I can only repeat the observations of the Full Court that, in the circumstances, each
party bear their own costs.

DAWSON J: That was what happened in the Full Court, was it?

MR HURLEY:  That is what has happened all the way to this

date, Your Honour.

DAWSON J:	What do you say, Mr Bell?
MR BELL:	I say that that is what has happened.
DAWSON J:	And that is all you say?

MR BELL: Yes, Your Honour.

DAWSON J:	By a majority, no order as to costs.
AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

Colakovski 20 30/8/91