Lynch v Human Rights and Equal Opportunity Commission

[1992] HCATrans 365

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S40 of 1992

B e t w e e n -

THERESA LYNCH

Applicant

and

HUMAN RIGHTS AND EQUAL

OPPORTUNITY COMMISSION

First Respondent

KATHLEEN HIGGS, representing

the Sisters of Charity

Second Respondent

Application for special leave

to appeal

BRENNAN J

Lynch 1 11/12/92

DAWSON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1992, AT 2.33 PM

Copyright in the High Court of Australia

MST. LYNCH in person.

MR F.L. WRIGHT, QC:  May it please the Court, I appear with

my learned friend, MR M.K. SCOTT, for the second

respondent. (instructed by Cutler Hughes & Harris)

MS R.M. HENDERSON: If the Court pleases, I appear for the

first respondent.	(instructed by M. Chalmers,
Solicitor for the	Human Rights Equal Opportunity
Commission)

BRENNAN J:	Ms Lynch, this is an application for special leave to appeal and I do not know whether you have
been informed but before the Court hears applicants
in person the Court needs to be satisfied that
there are some particular grounds which justify hearing the applicant in person instead of hearing
a legally qualified representative.  The reason for
that is that we need to be satisfied that the
argument that will be presented is one which will be presented by somebody who is alive to the legal
issues involved, not merely to the merits of the case.

Now, it is our practice, therefore, to ask an

applicant in person such as yourself to state, if

you will, as briefly as you can, the reasons why
you say we should hear you present the application

in person. For that reason, we are accustomed to

saying we will allow you a limited time in which to do so, possibly of the order of about 10 minutes, I

think.

MS LYNCH: 

Yes. Well, Your Honour, this is a freedom of information request that documents - allegations

were made against me by two members of my past

employer in 1985 to the New South Wales

Anti-Discrimination Board and after this case was

settled in my favour, I became aware - I have seen

me were highly defamatory; were destructive to my	the documents - that the allegations made against
character and me in my profession.	I am a trained

nurse.

Although I was given access to these documents

- I am not interested in other people's affairs.	I
simply want these documents so I can protect my
character because these documents are still being
circulated. So, I am appearing for myself because
- I have no legal training but I have read the Act
and I have read the Administrative Appeals Tribunal
Act and the Freedom of Information Act and under those Acts there is a discretion given to the
tribunal and to the courts and I feel there is a definite public interest in the applicant being given access to documents, particularly inaccurate

Lynch 11/12/92

documents that are held by government departments

that relate to that person.

So, I am representing myself because of the public interest issue and I think there are

important principles at stake.

BRENNAN J:  Ms Lynch, we need to be satisfied that there is

something in the case which justifies the

intervention of this Court, and that is that there

has been some error of law or some gross

miscarriage of justice in the decision of the court

below, that is, in this case, the Full Court of the

Federal Court.

MS LYNCH:	Yes. Well, I feel that there has been a serious miscarriage of justice - relevant consideration
that have not been given adequate weight, and I
feel that that is unjust. Looking at the reasons
that were given by the court when my application
for an appeal to the courts was dismissed and the
previous decision was upheld, which is the
withholding of these documents, that there is just no reference in judgment or reasons for decision that these documents are personal documents and
that they relate to me, and I think these are very
important issues and they should have be taken into
consideration during the judgment.

Also, there were matters in relation to the

Administrative Appeals Tribunal Act and the improper exercise of power by the tribunal, that

under the Act that an applicant can make an

application to the tribunal for a review of a

decision, and that is what I did. But when I got

to the tribunal, I have - an interested party was

admitted with legal representation and this

interested party introduced fresh evidence without

notice and I feel that that is in breach of the

rules.

DAWSON J:  Who was the interested party?

MS LYNCH:	They are now the second respondent, but they were the interested party at the tribunal. The reason I
went to the tribunal - there were exemptions put on
these documents.  I went there to have these
documents reviewed under the Administrative Appeals
Tribunal Act.  The exemption that was suddenly
raised without notice by a barrister - I was
unrepresented at the tribunal - I think it was very
unfair.

DAWSON J: This is the exemption that the disclosure of the

documents would be likely to prejudice the future

supply of information, as it were?

Lynch	11/12/92
MS LYNCH:	To a government - yes, 43(l)(c)(ii).

DAWSON J: Because the documents related to the settlement

proceedings under the Anti-Discrimination Act?

MS LYNCH:  I have seen the documents and they - - -

DAWSON J: But that is how it was put forward, was it not?

MS LYNCH: Well, I think that was how it was put forward by

the private hospital that was interested in the

administration of a government department. It

would appear to me if there was going to be an

exemption, it would be a government department that

would put on that type of exemption. That was

exemption 43.

There is also a subsection to 43(2) that was

never considered. That is that - it mentions here

that - 43(1) which was the exemption suddenly

raised without notice. I mean, if something is

suddenly raised without notice during a hearing - I

was unrepresented - I mean, it is impossible to

meet the case. I had no knowledge of the case to

be met and I think it is a breach_of procedural

fairness that a person should be given adequate

notice, and under section 39 of the Administrative

Appeals Tribunal Act states that a person is given adequate opportunity to present their case. Well,

I did not have really an adequate opportunity to present my case. There was no adjournment given

and I feel that was very wrong.

So, the subsection that was raised and upheld

by the tribunal, with the discretion that the

tribunal has, they did not exercise their

discretion in accordance with law. And on

subsection (2) it had that these documents can be

released if they relate to personal affairs. And I

have seen these documents. Although right through

they have said they are part of conciliation, they

are not part of conciliation. They were not in

response to questions given by the

Anti-Discrimination Board, they were simply

allegations made to discredit me by these officers

and which I feel was to put an abrupt end to the

investigation by the Anti-Discrimination Board, and

that is exactly what took place.

McHUGH J:  Why do you need the documents now?

MS LYNCH: I have raised that. What happened: because they are defamatory, I feel I have a right to protect my

reputation.

Lynch 11/12/92

McHUGH J: But you have seen what is allegedly said against

you and you can take action on that.	You do not
need the documents, do you?

MS LYNCH:  But I cannot remember the exact words. So, these

documents are being withheld from me and I feel these documents are evidence and can be used as

evidence in a court of law and my rights are being

affected by withholding evidence that could prove

that there has been a breach of the law.

BRENNAN J:  Ms Lynch, would you like to identify, as best

you can, the questions which you say, if special

leave were granted by this Court, would have to be

decided by this Court on appeal?

MS LYNCH:	Yes, the factors that I was going to raise?
BRENNAN J:	What are the questions which you would ask this

Court to decide?

MS LYNCH: Well, I feel that the discretion, as I said, that

the tribunal had in relation to the release of

documents - that the discretion was wrong on a

principle of law.

McHUGH J:  You are talking about the discretion, do you mean

the discretion under section 40(2) about the

section does not apply - - -

MS LYNCH: Well, the discretion is for release of documents.

I mean, I feel that the general public have right

to government information and with the introduction

of the Freedom of Information Act, it was to

confirm a right. The Freedom of Information Act:

I feel that Parliament's intention is that it was

to be extended and it gave each member of the

public a legal enforceable right to documents,

especially documents - - -

McHUGH J: But not to exempt documents.

MS LYNCH:  No.

McHUGH J: And the case that is put against you is that this

document comes within the description of "exempt

document" and that is the end of the matter.

MS LYNCH: Well, I feel that irrelevant factors were taken

into consideration and relevant factors were not

taken into consideration. I mean, under the

Freedom of Information Act, section 14 talks of

access to documents.

Nothing in this Act is intended to prevent or

discourage Ministers and agencies from

Lynch 11/12/92

publishing or giving access to documents

(including exempt documents) -

but before the tribunal we were also asked to put

forward submissions in the form of affidavits, and

I did that. At the hearing - - -

BRENNAN J:  Now, do you remember the question I asked you:

just identify the issues which you want this Court

to decide. Now, one of them I think I understand,

and that is whether the AAT should have exercised a

discretion to allow you to have access to the

documents.

MS LYNCH:	Yes, and also the fact that the discretion - the exercise of discretion, I think, was on a wrong
principle, especially the fact that there was no
adjournment given when I was surprised by these fresh grounds suddenly raised without notice, and that is section 39 of the Administrative Appeals
Tribunal Act.

In relation to this affidavit, when my - - -

BRENNAN J:	Is there any other question that.you wish to raise for this Court's decision?
MS LYNCH:	Yes, that under the Freedom of Information Act,

the exemptions that were upheld have subsections to

them and in one of these here is the public

interest and, I mean, they were not considered.

Section 41 talks about there would be a substantial

adverse effect on an agency. Well, I mean, these

were just allegations made against me personally.

But subsection (2) has that that does not apply,

in the balance, the release of the documents are in

the public interest. Well, I think it is in

nobody's interest to have inaccurate information

held by government departments.

But in relation to the affidavit, at the

hearing of the tribunal when my affidavit was being

put into evidence, the interested party, again,
they just gave objection after objection until they
almost - until in the end the Deputy President, who

was at the hearing, he would allow it in but rule

on it later and from that moment on he never

mentioned it. There was no reference to it in the tribunal should give, in writing, the reasons for its decision and those reasons should include a finding on material questions of fact and reference to the evidence and other material.
reasons for decision, and under section 43 of the

Now, my affidavit related to the public

interest and it was totally ignored. Another

Lynch 6 11/12/92

serious matter:  I feel there has been a serious

miscarriage of justice.

McHUGH J:  I am sorry, when you say your affidavit, you mean

your affidavit in support of your original

application before the tribunal, do you?

MS LYNCH: Well, I just had to write an affidavit just of

the facts	and what we were going to rely on -
evidence.	And we were going to rely on that
affidavit	at the hearing but it was never mentioned
again.

I have lodged three statements of claim in

relation to this defamation in the District Court.

Now, I have not brought that into evidence at all

at the Administrative Appeals Tribunal because I

was simply there under the Administrative Appeals

Tribunal Act to have a decision reviewed, and that

was to deny me access to these documents which they
claim are exempt. They did not when they first let me look at them but, after, they realized that they
were dangerous documents. They suddenly said,

"They're exempt", but they allowed me to look at

them under the Act and then changed their mind.

But something very important that occurred at

the tribunal which has not been given adequate

consideration during the appeal courts is that the
interested party brought forward three statements
of claim from the District Court. Those statements

of claim were not prepared for the Administrative

Appeals Tribunal and had nothing to do with the
Administrative Appeals Tribunal. They were for the

District Court.

Now, I feel, because these documents were put

forward, that the Deputy President was improperly

influenced. I think he was biased and he made a

very improper suggestion which is in the

transcript, that - - -

BRENNAN J: Is this in the appeal book?
MS LYNCH:	No.

BRENNAN J: Well then, I do not think that you should be

repeating here allegations which are not to be

substantiated by written material.

MS LYNCH:	No. Well, it is in the transcript, sir.
McHUGH J:	We only take account of material that is in the

appeal book, unless you are given leave to produce

materials.

Lynch 7 11/12/92

MS LYNCH:  I am sorry, it is in my appeal - I mean, there is

a reference to it here in my application for
special leave. It is one of the reasons on the

application for special leave. I have got that

here if you would like me to read that section out?

It is page 21 of the appeal book.

McHUGH J: It is paragraph {n) you are talking about, is it,

line 27?

MS LYNCH:  No, it is line 30, page 21 in (o):

His Honour should have found and it is clear

in the evidence in transcript of AAT by

Deputy President comments that he was

improperly influenced by the MFI -

they were marked MFI and he prejudged the issue.

What he actually said - - -

McHUGH J: That is the whole point, you see. You have got

no evidence on before us.

MS LYNCH:  I mean, it is here. I have actually got the

words quoted from the transcript here. I think it

is the draft notice of appeal, which is page 20.

It is page 28 No (f), line 25. After these

documents for the District Court were tendered by

the interested party, later in the evidence when

discussing should the documents be released, I

quoted from evidence here from Mr Bannon, that the:

release of documents "Fuels fires for further

litigation".

McHUGH J: Well that should, surely, be a proper ground to

be taken into account, would it not, under section

40(2)?

MS LYNCH:  I think he was improperly influenced.

McHUGH J:	You cannot be improperly influenced by a proper ground.
MS LYNCH:	But these documents were prepared for another

court. He read these documents and then later made

comment that the release of - we are talking about

the exempt documents now, the release of exempt

documents just "fuels fires for further

litigation".

BRENNAN J:  Ms Lynch, we are not now hearing an appeal, you

understand, we are hearing an application by you

for leave to present your own case on special

leave. For my part, I must say, I have not as yet

understood you to be raising a question which

justifies the grant of special leave or to indicate

Lynch 11/12/92

that there is something which you wish to put

forward which would attract the interest of this

Court.

MS LYNCH:  I think it is an error of law to deny a person

natural justice.

McHUGH J: But the question of natural justice was only in

respect of the section 43 defence and if that

defence had never been raised you would still have

failed under section 40 of the Act, would you not,

according to the courts below?

MS LYNCH: At the tribunal I wanted to call - see, the

people associated with these documents never came
forward to give any evidence and the affidavits of

the other people involved were given great weight.

Now, one affidavit had so many errors in it - I

think he was head of the legal department of the

Human Rights and Equal Opportunity Commission -

that before the hearing or just as the hearing

commenced, he had to be put into the witness-box by

his own solicitor and have the whole thing sorted

out.

The people who made the allegations against

me - Brooker - I mean, in the transcript it has got

that Mr Bannon said that there was no evidence in relation to confidentiality but he upheld that it

was confidential.	I do not know why it is
confidential when it only referred to me.	I mean,

these things only really refer to me, they do not

refer to anyone else. But I think it is improper

to withhold these documents from me and the longer

I am denied it, the wider the publication. I mean,

before we went to the tribunal the Human Rights

Commission copied the documents and circulated them to the wrong respondent and when we were at the

court Justice Morling said the affidavits - the

exempt documents were brought to the court under an

affidavit.	He said they were to be brought to the
court and left in the court and I later found out	that after the appeal had finished before Justice
Merling that - I do not know if she is a barrister
or solicitor - Ms Pearson, from the Human Rights
and Equal Opportunity, removed those documents from
the supreme court. There was no record that these
documents had left the court.

BRENNAN J:  Do we have this anywhere in the papers before

us? Is it an issue for determination by the High

Court?

MS LYNCH: Well, yes, I have got it there and also I had to

go down to the Registry about it. They were gone

for quite some time.

Lynch 9 11/12/92

BRENNAN J:  I think, Ms Lynch, you had an opportunity to

tell us why you should be permitted to argue this

case in person.	Is there anything you wish to add
to that?

MS LYNCH: Well, I feel that it is in the interests of

justice and in the administration of justice that

these documents be released and that I be granted

special leave to appeal and to appear in person.	I
think the exercise of a discretion is on a wrong
principle of law.	I think it brings in natural
justice.	I feel that to withhold these documents

from me is to deny me a chance of running a

successful defamation case. I do not think it is

in the public interest to have these documents on

record. They are inaccurate. I have no way of

correcting these documents now.

BRENNAN J:  Thank you.

The applicant has identified the issues which,

if special leave were granted, she would seek to

argue in this Court. None of those issues

justifies the intervention of this Court.

Accordingly, even if leave were given to the

applicant to present her case, special leave would

be refused. The application for special leave to

appeal is accordingly dismissed.

MR WRIGHT:  As to the second respondent, we would seek an

order for costs, even if it just be costs as to one

counsel.

MS HENDERSON:  Your Honours, the first respondent also seeks

costs.

BRENNAN J:  Ms Lynch, there is an application for costs

against you by each of the parties in this case.

Do you wish to say anything about that?

MS LYNCH: Well, that was one of my grounds for appeal; that

personal documents under the Freedom of Information	I think it is improper, when a person is requesting
Act and especially to an interested party that came
along, that I should be held responsible for costs.
I think that the costs should be dismissed.

BRENNAN J: In the circumstances, it seems that we have no

option, in the light of the order that has been made, but to grant the order for costs that has

been applied for. Accordingly, the application for

special leave is dismissed with costs, limited in

the case of the second respondent to one counsel.

MR WRIGHT: If the Court pleases.

AT 3.00 PM THE MATTER WAS ADJOURNED SINE DIE

Lynch 10 11/12/92