Lynch, T. v Human Rights and Equal Opportunity Commission

[1992] FCA 91

JUDGMENT No. .. q! .... /..P,,&..

A ? )

NEW SOUTH WALES DISTRICT REGISTRY )	NG 506 of 1991
GENERAL DIVISION	1
B E T W E E N :

THERESA LYNCH Appellant

and

HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION

First Respondent

and

KATHLEEN HIGGS REPRESENTING THE SISTERS OF CHARITY

Second Respondent

LRAM:  Black CJ, Wilcox and Gununow JJ

W: Sydney

m:  20 February 1992

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:
This is an appeal from a judgment of Morling J. The matter

The appellant, MS Lynch, applied to the Administrative Appeals	denying her access to certain documents. Access to those	Tribunal for review of a decision by the first respondent
documents had been sought by MS Lynch pursuant to the provisions of the Freedom of Information Act 1982.
The documents in question are notes of conversations which took place as part of the conciliation process provided for in Part I1 of the Sex Discrimination Act 1982 (Commonwealth). MS Lynch made a complaint to the Human Rights Commission in 1985 which treated it as a complaint under the Act. In the course of investigating the complaint, the Commissioner, through officers of the New South Wales Human Rights Commission, acting as agent for the Commonwealth Human Rights Commission, made inquiries of staff of the hospital where MS Lynch had been employed; it was in respect of her employment at that hospital that MS Lynch had made her complaint.
Ms. Lynch was, as the Deputy President described her, a highly qualified person who was employed at St Vincent's Hospital in the intensive care ward. There was trouble at the Hospital and
MS Lynch was dismissed. Subsequently she brought proceedings for reinstatement before the New South Wales Industrial Commission. As we have noted, the matter at the hospital led
to MS Lynch making a complaint under the Sex Discrimination Act, and as we have also noted, it was in the course of procedures under that Act that inquiries were made of her former employer.
Access to the notes of the conversations was refused by the Respondent to this appeal on the footing that the notes were exempt documents under various provisions o f the Freedom o f
Information Act. The Deputy President from whom the appeal to
Morling J. was brought found that the documents were exempt by reason of the provisions of the Freedom o f Information Act to which we now refer.
The first provision is section 45(1) which provides that:

before his Honour was an appeal, which was limited to
questions of law, from a decision of the Administrative

Appeals Tribunal constituted by Deputy President Bannon, Q.C.

"A document i s an exempt document i f i t s disclosure under the act would constitute a breach o f confidence. "

The second provision is section 40(l)(d) which provides that, subject to subsection (2):

"A document i s an exempt document i f i t ' s disclosure under th i s Act would, or could reasonably be expected t o -

( d ) have a substantial adverse e f f e c t , on the

proper and e f f i c i e n t conduct o f the operations

o f an agency.

Subsection (2) states:

respect o f matter i n the document the disclosure o f "This section does not apply t o a document i n	which under th i s Act would, on balance, be i n the
public interest ."

The third provision is that contained in section 43(l)(c)(ii) of the Act which provides:

" 4 3 . ( 1 ) A document i s an exempt document i f i t s

disclosure under the Act would disclose:

( C ) information (other than trade secrets or

information to which paragraph (b) applies)

concerning a person i n respect o f h i s business or

professional a f f a i r s or concerning the business,

commercial or financial a f f a i r s o f an organization

or undertaking, being information:

(ii) the disclosure of which under this Act could reasonably be expected to prejudice the future supply of information to the Commonwealth or an agency for the purpose

of the administration of a law of the

Commonwealth or of a Territory or the administration of matters administered by

an agency. "

The Deputy President rejected the claim that the documents were exempt under section 36 (1) of the Act, a provision which relates to internal working documents of an agency and has a public interest requirement as well.

MS Lynch contended before Morling J that the claim for exemption under section 43(l)(c)(ii) of the Act, that is the claim that the disclosure could reasonably be expected to prejudice the future supply of information, was introduced in the proceedings before the Administrative Appeals Tribunal in a manner that denied her procedural fairness. His Honour said that he could see no basis whatsoever for the claim that MS Lynch had been denied natural justice.

evidence, or no sufficient evidence, to support the decision	HLS Honour also rejected the argument that there was no
of the Deputy President. He considered that the material before Mr. Bannon justified him in concluding that the decision of the Commission to deny access to the documents to MS Lynch was properly made. Upon her appeal to this Full Court the appellant re-argued her complaints that there had been a denial of natural justice and her complaint that there was no evidence to support the conclusions of the Deputy President.
It is the view of the court that the appeal, insofar as it is based upon a denial of natural justice occasioned by the late reliance upon the ground of exemption provided for by section 43(1)(c)(ii) of the Freedom of Information A c t , is in any event a hopeless one. This is because the grounds of exemption provided for by section 45(1) and section 40(l) (d) were made out before the Deputy President and either of them suffices to render the documents exempt from access under the Freedom of Information Act. Those conclusions of the Deputy President were based on findings of fact which were plainly open on the material before him. Quite independently of any complaint about the late introduction of the ground under section 43(l)(c)(i), the documents made were clearly exempt documents on the findings of fact made by the Deputy President. We emphasise that it is, of course, sufficient if one ground of
exemption is made out.
We can discover no error of law in the construction given to sections 45(1) and 41(d) upon the authorities in which the Freedom of Information A c t has been considered.
MS Lynch complained before us, as she did before Morling J, that evidence had been improperly admitted before the Deputy President.
Morling J, in his reasons for decision, referred to that matter and noted that the material consisted of certain documents filed in proceedings in the New South Wales District Court. His Honour concluded - and we would respectfully agree - that M r Bannon made it plain in his reasons for decision that he thought the material was irrelevant and that he paid no regard to it. That indeed was what MS Lynch asked him to do, and as his Honour pointed out, the Deputy President adopted a view favourable to MS Lynch in respect of that material. We might add that the passage in the transcript to which MS Lynch referred in her argument this morning, was a passage in which the Deputy President indicated the use which he supposed the party introducing the material would seek to make of it. Later, the Deputy President quite clearly ruled that the material was irrelevant.
MS Lynch also complained that there had been a failure to take into account an affidavit that she filed and relied upon
before the Administrative Appeals Tribunal. In our view there is no basis for saying that the Deputy President did fail to take into account any relevant part of her affidavit. In any
event, we consider that even if he did decline to act on some parts of it, that could not be said in any event to have in any way affected the result.
MS Lynch also complained of the failure to have M r Brooker (one of the parties to the conversations of which the notes in dispute were made) made available for cross-examination in circumstances that she described by reference to the transcript. All we say about that is that the cross-
examination of Mr Brooker could not have had any effect on the
finding that the documents were exempt under section 40(l)(d) of the Act. It will be recalled that section 40(l)(d) is a sectlon concerned not with the nature of the documents as they might affect the hospital, but as to the effect the disclosure of the documents might have on the proper and efficient conduct of an agency. In this case, the agency was the Commission. For these reasons we consider that the appeal should be dismissed and wlll so order.
The appeal will be dismissed with costs, such costs not to include in the case of the second respondent the costs of senior counsel.

I certify that this and the preceding

Reasons for Judgment herein of the

six (6) pages are a true copy of the