Kavvadias, Dimitrious v Commonwealth Ombudsman - [1984] FCA 196

Re: DIMITRIOUS KAVVADIAS
And: COMMONWEALTH OMBUDSMAN (1984) 2 FCR 64
No. G393 of 1983
Freedom of Information - Administrative Law
(1984) ADMIN para 96-024 / 54 ALR 285 / 6 ALD 198

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Sheppard J.(1)

CATCHWORDS

Freedom of Information - the Ombudsman - draft report concerning complaint of stopping of pensions payable to Greek pensioners - exemption of report from disclosure.

Freedom of Information Act 1982, ss. 4, 22 and 36

Ombudsman Act 1976, ss. 8, 12, 15, 35

Administrative Decisions (Judicial Review) Act 1977, paras. 5(1)(e) and (f) and 5(2)(a) and (b)

Administrative Law - Freedom of information - Right of access to Government documents - Draft report prepared by Ombudsman following receipt of complaint - Whether Freedom of Information Act applies to documents of Ombudsman - Whether report prepared for purposes of "deliberative processes" - Whether disclosure contrary to public interest - Ombudsman Act 1976 (Cth), ss 8, 12, 35 - Freedom of Information Act 1982 (Cth), s. 36(1).

HEADNOTE

Held: (1) Documents prepared by the Ombudsman, including draft reports, are not excluded from the operation of the Freedom of Information Act 1982 (Cth).

Kavvadias v. Commonwealth Ombudsman (1984) 1 F.C.R. 80, News Corporation Ltd v. National Companies and Securities Commission (No. 4) (1984) 1 F.C.R . 64, applied.

(2) To the extent that the draft report, prepared by the Ombudsman following a complaint received by him, made criticisms of the Department of Social Security or informed the Department of criticisms made of it by others and discussed and came to conclusions concerning the validity of those criticisms, the draft report was doing so for the deliberative processes involved in the functions of the Department, within the meaning of s. 36(1)(a).

Harris v. Australian Broadcasting Corporation (No. 1) (1983) 50 A.L.R. 551, considered.

(3) Disclosure of the draft report, which was prepared for the principal purpose of enabling the Ombudsman to discharge his obligation under s. 8(5)(a) of the Ombudsman Act 1976 (Cth), would be contrary to the public interest.

Harris v. Australian Broadcasting Corporation (No. 1) (1983) 50 A.L.R. 551, followed.

HEARING

Sydney, 1984, April 2, 3; July 9. #DATE 9:7:1984

APPLICATION.

Application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the respondent's decision refusing the applicant's request for access to a draft report prepared by the respondent.

P. Bayne, for the applicant.

D. Buchanan, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: P. Molan.

Solicitor for the respondent: M. Lynch.

F.P.C.

ORDER

1. The decision of the Ombudsman made on 5 May 1983 under the Freedom of Information Act 1982 refusing to disclose to the applicant the draft report of the Ombudsman dated in or about the month of March 1983 in relation to complaints concerning the conduct of the Department of Social Security in stopping payment of pensions to a number of Greek pensioners be set aside.

2. The Ombudsman give the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1984] FCA 196
Decision Date: 09 JULY 1984

CaseChat Overview and Summary

Kavvadias, Dimitrious, the applicant, sought access under the Freedom of Information Act 1982 to a draft report of the Commonwealth Ombudsman concerning the conduct of the Department of Social Security in stopping payment of pensions to a number of Greek pensioners. The Commonwealth Ombudsman, the respondent, refused to disclose the draft report. The matter was heard in the Federal Court of Australia, where the applicant challenged the Ombudsman's decision. The legal issues before the court were whether the Ombudsman was correct in refusing to disclose the draft report and whether the applicant was entitled to access the purely factual material in the report.

The court held that the Ombudsman was not entitled to withhold the purely factual material from disclosure. The court found that the Ombudsman had not demonstrated a compelling reason for withholding the factual information, as required by the Freedom of Information Act. The court held that the applicant had a right to access the factual material in the draft report, which did not include opinions or recommendations. The court found that the Ombudsman had not demonstrated that the disclosure of the factual material would harm the administration of the Act or any other law, or would otherwise be against the public interest. The court ordered that the Ombudsman give the applicant access to the purely factual material in the draft report.

The final orders of the court were that the decision of the Ombudsman be set aside, the Ombudsman give the applicant access to the purely factual material in the draft report, and there be general liberty to apply to either party on 7 days' notice. There was no order as to costs by consent. The matter was reserved for further orders.

Orders

Orders of the court

1. The decision of the Ombudsman made on 5 May 1983 under the Freedom of Information Act 1982 refusing to disclose to the applicant the draft report of the Ombudsman dated in or about the month of March 1983 in relation to complaints concerning the conduct of the Department of Social Security in stopping payment of pensions to a number of Greek pensioners be set aside.

2. The Ombudsman give the applicant access to so much of the draft report referred to in Order 1 as consists of purely factual material in the sense of that expression as used in sub-sec. 36(5) of the Freedom of Information Act 1982.

3. There be general liberty to apply to either party on 7 days' notice.

4. By consent there be no order as to costs. Orders reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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