Hayes, George v Secretary, Department of Social Security

[1997] FCA 350

CATCHWORDS

ADMINISTRATIVE LAW - freedom of information - exempt documents - anonymous letter containing information adverse to appellant - whether appeal against findings of fact.

Freedom of Information Act 1982 (Cth) - s 37

GEORGE HAYES v SECRETARY, DEPARTMENT OF SOCIAL SECURITY
SG 111 OF 1996

SPENDER, DRUMMOND AND FINN JJ
6 MAY 1997
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA  No SG 111 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:GEORGE HAYES

Appellant

AND:SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

MINUTES OF ORDERS

CORAM:Spender, Drummond and Finn JJ

DATE:6 May 1997

PLACE:Adelaide

THE COURT ORDERS THAT:

1. The appeal is dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  No SG 111 of 1996
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:GEORGE HAYES

Appellant

AND:SECRETARY, DEPARTMENT OF SOCIAL SECURITY

Respondent

CORAM:Spender, Drummond and Finn JJ

DATE:6 May 1997

PLACE:Adelaide

REASONS FOR JUDGMENT

SPENDER J:   I will ask Drummond J to give the first judgment.

DRUMMOND J:   This is an appeal from a single judge of the court who dismissed Mr Hayes' appeal from a decision of the Administrative Appeals Tribunal.   Mr Hayes' concern is to obtain access to an anonymous letter sent to the respondent Department which contains information adverse to him.  The Department accepts that the information is untrue.   Mr Hayes wants a copy of the letter or, alternatively, a type-script copy of the letter.

The Department refused his application made under the Freedom of Information Act 1982 (Cth) for access to the letter. It contended that the document was exempt from disclosure under s 37. Section 37 of the Freedom of Information Act provides:

“(1)A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to:

…

(b)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information, or the non-existence of a confidential source of information, in relation to the enforcement or administration of the law; …”.

The AAT conducted a full hearing into the Department's refusal to give the document to Mr Hayes:  at one stage, it adjourned the hearing to enable further evidence to be put before it on matters central to its decision.   It made the following finding:

"On the evidence before it, the Tribunal is satisfied that there are reasonable grounds for concluding that the disclosure of the letter, whether in its original or typed form, could reasonably be expected to enable the applicant to ascertain the identity of its author."

That is plainly a finding of fact and the learned primary judge correctly identified it as such.   Mr Hayes, however, disputes the correctness of this finding.  He says, for example, that a typed copy of the letter could not reveal the identity of its source.   The AAT also made two other findings important to this appeal:

"The Tribunal accepts the respondent's contention that the information was provided to the respondent under an implied request for confidentiality ... Further, the letter was received in confidence by the respondent."

These are also findings of fact and again the learned primary judge correctly identified them as such.   Once again, Mr Hayes disputes the correctness of these findings.  He says the letter cannot have come from a confidential source because it was not signed and because it did not contain any request that it be kept confidential.  Mr Hayes has also drawn attention to different procedures followed in other cases in which anonymous letters have been received by the Department, but that provides no basis for challenging the findings of fact made by the AAT in this case on the evidence before it.

In any event, an appeal from the AAT lies to this Court only on questions of law; neither the learned primary judge nor this Court has power to review findings of fact made by the AAT.  Yet in presenting arguments why different findings to those made by the AAT should have been made, that is exactly what Mr Hayes seeks to obtain from this Court.  The appeal should, in my opinion, be dismissed.

SPENDER J:   I agree, for the reasons which Drummond J has given, that the appeal should be dismissed.  This appeal was utterly without substance.  It was, in my opinion, a further self-indulgent revisiting by Mr Hayes of factual matters which failed for those reasons before Mansfield J and which must for those same reasons have the same consequence here.

FINN J:   I agree with the reasons of Drummond J that the appeal should be dismissed.

SPENDER J:   The appeal is dismissed.

I certify that this and the preceding three
pages are a true copy of the reasons
for judgment herein of the Court.

Associate:

Date:6 May 1997

The appellant appeared in person.

Counsel for the respondent:  Miss S  Maharaj

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  6 May 1997