Harris, Jennifer May McDonald v Australian Broadcasting Corporation

[1984] FCA 276

276

IN THE F E D E W COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	j
) No. 118 of 1983 ~ ~-
GENERAL DIVISION	1 No. 189 of 1983

BETWEEN: JENNIFER MAY McDONALD HARRIS

Appllcant

AND : AUSTRALIAN BROADCASTING CORPORATION

and KEITH CAMERON MACKRIEL and

MICHAEL H. COSBY

Respondents

ORDER

JUDGE MAKING ORDERS: Beaumont, J.

DATE ORDERS MADE:	17 July, 1984.
WHERE MADE:	Sydney.

THE COURT ORDERS THAT:

1. I dlrect that the flrst respondent glve the thlrd

respondent access to the balance of the reports referred to rn Order 1, belng the documents remalnlng In respect of which access, to thls pomt of tlme, has been denled pursuant

to Order 2 made hereln on 4 October 1983.

2. No order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY )
1 No. 118 of 1983

DIVISION GENERAL ) NO. 189 of 1983

BETWEEN: JENNIFER MAY MCDONALD HARRIS

Appllcant

AND : AUSTRALIPJI BROADCASTING CORPORATION

and KEITH CAMERON MACKRIEL and

MICHAEL H. COSBY

Respondents

CORAM: Beaumont , J.

DATED: 17 July, 1984.

REASONS FOR JUDGMENT

(ex tempore)

In thls matter, In my reasons for ~udgment dated

4 October 1983, I lndlcated, at pp.33-34 thereof that	I
proposed :

“To reserve general llberty to any party to apply

for further rellef, If necessary. I have in mlnd,

in partlcular, the posslblllty that a question may

arise as to what 1s purely factual materlal and	as
to Its severabllity ...“

I interpolate that this questlon was dealt with

separately, and went on appeal, and the appeal was dlsslssed.

- 2 -

I go on t o s a y a t pp.33-34:

" ... a n d t h e f u r t h e r p o s s l b l l l t y t h a t t h e

t h l r d r e s p o n d e n t may w l s h t o seek access

t o t h e b a l a n c e o f t h e materlal l n t h e

r e p o r t s a f t e r t h e c o r p o r a t l o n has r e s o l v e d

t h e matters c o n c e r n l n g t h e a p p l l c a n t

ralsed by t h e Ombudsman and now a w a l t l n g

d e t e r m l n a t l o n . I t IS n o t a n d c o u l d n o t b e

s u g g e s t e d t h a t access by t h e t h l r d r e s p o n d e n t

t o a n y p a r t o f t h e r e p o r t s s h o u l d b e d e n l e d

a f t e r t ha t	d e t e r m l n a t l o n	1s	made	(see s.36
(6)(c))."

The matter has now b e e n r e s t o r e d t o t h e l l s t and

b r l e f a r g u m e n t has o c c u r r e d o n t h e q u e s t l o n w h e t h e r t h e

t h l r d r e s p o n d e n t s h o u l d now be g lven access t o t h e b a l a n c e

o f t h e materlal mentloned. I n t h a t c o n n e c t l o n , M r . J o n e s ,

who now a p p e a r s f o r t h e A.B.C. , h a s t e n d e r e d some c o r r c s -

pondence , and has adopted what , I t h l n k , would be des-

c r l b e d f a l r l y I n t h e clrcumstances w h l c h h a v e a r l s e n , as a

n e u t r a l p o s l t l o n . I n p a r t l c u l a r , M r . J o n e s h a s t e n d e r e d a

copy of a l e t te r w r l t t e n b y t h e C h a l r n a n of t h e A . B . C . t o t h e

Commonwealth Ombudsman d a t e d 28 J u n e 1 9 8 4 . I n t h e c o u r s e

o f t h a t l e t t e r , the Cha l rman s ays :

" A s p a r t o f t h e o v e r a l l r e s t r u c t u r l n g , t he Board ,

a t Its rneetlng	on	25	May	1 9 8 4 .	r e s o l v e d	as
f o l l o w s :

' ( a ) An Es tab l l shment and Sys tems Revlcw of t h e

s t r u c t u r e s needed for the Radlo and

T e l e v l s l o n L e g a l U n i t s s h o u l d be conduc ted

and recommendatlons w l l l be p r e s e n t e d t o t h e

August Board Meetlng.

( b ) A p o s l t l o n o f L e g a l O f f l c e r t o h a n d l e c o n -

v e y a n c i n g a n d p r o p e r t y related matters I n

t h e E n g l n e e r l n g a n d P r o p e r t y D l r e c t o r a t e ,

s h o u l d b e c r e a t e d .

- 3 -

(c) (Positlon No. 110965), Senlor Legal Offlcer

The posltlons of Prlnclpal Legal Offlcer (Posltlon No's 101248, 136913, 177326) shall be abolished.'

The Board takes the vlew that the proposed new

arrangements for the provislon of legal services,

though constltuting only a small part of the

fundamental re-organlsatlon of the ABC, could be

seen as a satisfactory resolutlon of the relevant matters whlch you referred to the former Chalrman of the Commlsslon, Professor Kramer.

Should you requlre any further mformatlon, I shall

be happy to provlde It. I would be grateful If

you would let me know whether the provlslon of the

above information will enable you to complete your

lnvestlgatlon. "

In the clrcumstances, a questlon arlses as to what

was meant by the reference to "the matters concernlng the

applicant ralsed by the Ombudsman and now awaitlng

determlnatlon", appearlng at p . 3 4 of my reasons for ~udgment

dated 4 October, 1983. In my vlew, It was clear that the

matter there referred to in terms of a determlnatlon, was

a determlnatlon not by the Ombudsman but by the A.B.C.

itself. My ~udgment, read as a whole, I thlnk makes that

clear enough. So far as the Ombudsman's determlnatlon 1 s

concerned, that, of course, 1 s a matter for hlm; and whether

he has completed hls mvestlgatlons is a matter whlch calls

for no comment as far as 1 am concerned.

In my oplnlon, It 1s clear from the letter dated

28 June, 1984 from the Chairman of the A.B.C. to the

Ombudsman that, so far as the A.B.C. is concerned, the matter is fully determined.

- 4 -

In those clrcurnstances, In my vlew, the condltlon

precedent to access being granted to the thlrd respondent

of the remalnlng documents has now been fulfilled. For those

reasons, In my vlew, a directlon should now be glven under

whlch the third respondent has the access required.

In the clrcumstances, the order I make 1 s as

follows:

1. I dlrect that the flrst respondent glve the third

respondent access to the balance of the reports referred

to In Order 1, belng the documents remamlng ln respect of

which access, to this point of tlme, has been denled pursuant

to Order 2 made hereln on 4 October 1983.

2 . No order as to costs.