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Federal Court of Australia Act 1976 (Cth) ss 17, 37AF(1), 37AG, 50 (repealed)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
Date of hearing: 22 November 2017 Registry: Australian Capital Territory Division: General…
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- Case
- [2017] FCAFC 225
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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