Giddings v Australian Information Commissioner

Link copied
Case Copied 36 min read

FEDERAL COURT OF AUSTRALIA

Giddings v Australian Information Commissioner [2017] FCAFC 225

Appeal from: Giddings v Australian Information Commissioner [2017] FCA 677
File number: ACD 54 of 2017
Judges: COLLIER, FLICK AND CHARLESWORTH JJ
Date of judgment: 21 December 2017
Catchwords:

ADMINISTRATIVE LAW – freedom of information – where delegate of the Information Commissioner decided not to continue with review – where decision of the Information Commissioner set aside on review – no error exposed

PRACTICE AND PROCEDURE – whether order should have been made for the proceedings to be held in camera pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – where onus on appellant to establish that order should be made – whether such an order was “necessary” in the circumstances – apprehended bias – whether claim of apprehended bias “firmly established” – whether allegations of bias irresponsibly advanced

TORTS – misfeasance in public office – elements of the tort of misfeasance in public officer – whether administrative decision-maker’s action pursued with knowledge or reckless indifference as to whether it was in excess of power – whether administrative decision-maker’s action pursued with malice

Legislation:

Administrative Decisions (Judicial Review) Act1977 (Cth) s 16

Federal Court of Australia Act 1976 (Cth) ss 17, 37AF(1), 37AG, 50 (repealed)

Freedom of Information Act 1982 (Cth) ss 54W, 55K

Federal Court Rules 2011(Cth) r 36.01(2)(c)

Cases cited:

Australian Broadcasting Commission v Parish (1980) 43 FLR 129

Beaudesert Shire Council v Smith (1966) 120 CLR 145

Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198, (1999) 88 FCR 438

Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28

Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337

Fernance v Nominal Defendant (1989) 17 NSWLR 710

Giddings v Australian Information Commissioner [2017] FCA 677

Hogan v Australian Crime Commission [2010] HCA 21, (2010) 240 CLR 651

Hogan v Hinch [2011] HCA 4, (2011) 243 CLR 506

House v The King (1936) 55 CLR 499

Livesey v New South Wales Bar Association (1983) 151 CLR 288

Lock v Australian Securities and Investments Commission [2016] FCA 31, (2016) 248 FCR 547

Macksville & District Hospital v Mayze (1987) 10 NSWLR 708

Northern Territory of Australia v Mengel (1995) 185 CLR 307

Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 104

Park Oh Ho v Minister of State for Immigration and Ethnic Affairs (1989) 167 CLR 637

Porter v OAMPS Ltd [2005] FCA 232, (2005) 215 ALR 327

Re JRL; Ex parte CJL (1986) 161 CLR 342

Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2009] FCA 1487, (2009) 263 ALR 93

Rush v Commissioner of Police [2006] FCA 12, (2006) 150 FCR 165

Sanders v Snell (1998) 196 CLR 329

Date of hearing: 22 November 2017
Registry: Australian Capital Territory
Division: General…
CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Giddings v Australian Information Commissioner and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCAFC 225
Decision Date

CaseChat Overview and Summary

Giddings v Australian Information Commissioner is a case before the Federal Court of Australia, where the appellant, Giddings, sought to challenge a decision of the Australian Information Commissioner. The appellant's primary contention was that the Commissioner had erred in not continuing with a review of a decision and in subsequently setting aside the original decision. Additionally, Giddings sought to prevent the publication of his identity and information that could lead to his identification, arguing this was a breach of his right to privacy. The court had to decide on the legality of the Commissioner's decision, the appropriate application of the open justice principle in the Federal Court of Australia Act 1976 (Cth), and whether an order should have been made for the proceedings to be held in camera. The court also examined the elements of misfeasance in public office and whether the administrative decision-maker acted with malice.

The court found that the Information Commissioner's decision to set aside the original decision was correct, as no error was exposed. Regarding the publication of Giddings' identity, the court upheld the primary Judge's decision not to hold the hearing in camera or to suppress documents. The court emphasised that justice should be administered publicly in open court, in line with the open justice principle. The court rejected Giddings' claims of bias and misfeasance in public office, finding that the allegations were not firmly established and were irresponsibly advanced. The court concluded that the primary Judge's decisions were correct and that the appellant had not successfully demonstrated that the hearing should be held in camera or that his identity should be protected.

The court dismissed the appeal and ordered Giddings to pay the costs of the appeal to the respondent. This decision underscores the importance of the open justice principle and the proper administration of justice, while also affirming the limits of judicial discretion in cases of claimed bias and misfeasance. The outcome highlights the difficulties in establishing claims of bias and misfeasance in public office and the necessity for clear and convincing evidence to support such claims.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Appellant is to pay the costs of the appeal of the Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Second, a provision which assumed importance to Mr Giddings’ claim that his right to privacy should be respected such that no decision published by the Information Commissioner should identify him was s 55K of the Freedom of Information Act. Section 55K(1) and (8) provide as follows: Decision on IC review—decision of Information Commissioner (1)After undertaking an IC review, the Information Commissioner must make a decision in writing: (a) affirming the IC reviewable decision; or (b) varying the IC reviewable decision; or (c)setting aside the IC reviewable decision and making a decision in substitution for that decision. …Publication requirement (8)The Information Commissioner must publish a decision on an IC review to members of the public generally.The request for anonymity Although not expressly referred to in the Grounds of Appeal, a recurring issue in Mr Giddings’ 19 page annexure to the Notice of Appeal is the failure on the part of the Commissioner and the primary Judge to preserve his anonymity. Mr Giddings has from the outset pressed a claim that there should be no publication of either his identity or information that could serve to identify him. He has relied throughout on a claimed “rights to privacy”. Mr Giddings has from the outset sought “de-identification”. It is nevertheless unclear whether Mr Giddings’ present complaint is focussed upon the conduct of:·the Information Commissioner; or ·the primary Judge. It is the decision of the primary Judge which assumes present importance since it is the identification of Mr Giddings in the published judgment which has identified him to all that follow and read the decisions of this Court. Such publication is a publication to the world at large. Before the primary Judge, Mr Giddings advanced a submission that the Commissioner had erred in respect to the extent of the power conferred by s 55K(8) and, in particular, the interpretation of the phrase “must publish a decision … to members of the public generally”. The primary Judge was correct in rejecting the submission then advanced: [2017] FCA 677 at [25]. But any such argument seems to have been overtaken by the fact that there has now been publication of the identity of Mr Giddings by reason of the rejection by the primary Judge of an interpolated application that the hearing be conducted in camera and a request that numerous documents in evidence be suppressed. In rejecting that request, the primary Judge “was not satisfied that the hearing of the application in open Court would be contrary to the interests of justice” and was not “satisfied that any of the grounds for the making of suppression or non-publication orders under Part VAA of [the Federal Court of Australia Act 1976 (Cth)] had been established”: [2017] FCA 677 at [19]. Those decisions of the primary Judge are clearly correct. The primary Judge referred to s 17 of the Federal Court of Australia Act 1976 (Cth), which gives statutory force to the principle that justice must be administered publicly in open court and gives recognition of the weight of public interest which attaches to that principle: Australian Broadcasting Commission v Parish (1980) 43 FLR 129 at 132 per Bowen CJ. Indeed, an “essential characteristic of courts is that they sit in public”: Hogan v Hinch [2011] HCA 4 at [20], (2011) 243 CLR 506 at 530 per French CJ. The Chief Justice went on to further observe (at 531 to 532):[21] It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. That may be done where it is necessary to secure the proper administration of justice. …[22] It is a common law corollary of the open-court principle that, absent any restriction ordered by the court, anybody may publish a fair and accurate report of the proceedings, including the names of the parties and witnesses, and the evidence, testimonial, documentary or physical, that has been given in the proceedings.(Footnotes omitted.)Mr Giddings was unable to persuade the primary Judge that the Court should not sit in public and has been equally unable to persuade this Court that the primary Judge erred in the exercise of the discretion not to hold the hearing in camera: cf. House v The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.