Mentink v Albietz - [1999] QSC 9

IN THE SUPREME COURT
OF QUEENSLAND
No 630 of 1998
Brisbane
Before the Hon. Mr Justice Muir
[Mentink v Albietz]
BETWEEN:

WILFRED JAN REINIER MENTINK
Applicant
AND:

F N ALBIETZ
INFORMATION COMMISSIONER (QUEENSLAND)
First Respondent

AND: QUEENSLAND CORRECTIVE SERVICES COMMISSION
Second Respondent

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 28 January 1999

CATCHWORDS: ADMINISTRATIVE LAW - review of decision of Information Commissioner (Qld) under s. 20 Judicial Review Act 1991 (Qld) which denied applicant access to document - discretion of Court under s. 30 Judicial Review Act - whether material sought by applicant included “exempt matter” within meaning of s.44(1) Freedom of Information Act 1992 (Qld) and fell within s.46(1)(a) of that Act - whether disclosure of document would be in breach of confidence - content of decision maker’s duty to give reasons pursuant to s.89(2) Freedom of Information Act.

Counsel: Mr W.J.R. Mentink in person
Mr G. Sorensen for the first respondent
Mr S.J. Lee for the second respondent

Solicitors: Mr W.J.R. Mentink in person
Mr P.H. Shoyer for the first respondent
The Crown Solicitor for the second respondent

Hearing date: 5 January 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 630 of 1998
Brisbane
Before the Hon. Mr Justice Muir
[Mentink v Albietz]
BETWEEN:

WILFRED JAN REINIER MENTINK
Applicant
AND:

F N ALBIETZ
INFORMATION COMMISSIONER (QUEENSLAND)
First Respondent

AND: QUEENSLAND CORRECTIVE SERVICES COMMISSION
Second Respondent

REASONS FOR JUDGMENT - MUIR J.
Judgment delivered 28 January 1999

In September 1993 the applicant pleaded guilty to a charge of maintaining a sexual relationship with a minor and to indecently dealing with another minor. He was sentenced to a term of imprisonment of nine years for the former offence and to a term of one year for the latter. On appeal the nine year term was reduced to six years. The applicant was released on parole in late November 1996.
The applicant seeks to review a decision of the first respondent (the Information Commissioner (Qld)) communicated in a letter of the first respondent to the applicant dated 1 December 1997. The decision was one reviewing a decision by the second respondent (the Queensland Corrective Services Commission) of 18 January 1995 to deny the applicant access to certain pages of the “professional management file” (“the file”) kept by the second respondent, in respect of the applicant as a prisoner. Prior to 1 December 1997 the first respondent had, as part of the process of an application for review made by the applicant, decided that parts of the file had been erroneously withheld by the second respondent from the applicant. The applicant was then given access to those parts. The applicant presses for full disclosure of the contents of the materials the subject of this application, namely -
(a)pages 145-147 of the file, being a letter dated 28 March 1994 to the then Attorney-General from the Principal of the Gordonvale State High School and another person (“the principal’s letter”);
(b)page 148 of the file, being a letter from the then Minister for Justice, Attorney-General and Minister for the Arts to the then Minister for Police and Minister for Corrective Services. (The applicant has already had access to the document with the parts of it deleted which identify the co-author of the principal’s letter); and
(c)page 151 of the file, being a letter dated 15 July 1994 to the General Manager of the Moreton Correctional Centre from the parents of one of the complainants. (The applicant has had access to the first paragraph of this document and has been informed of the identities of the authors of the letter.)
The first respondent determined that pages 145-147 and 148, with the exceptions above noted, were exempt matters within the meaning of s.46(1)(a) of the Freedom of Information Act 1992 (Qld) (“the Act”). Access to page 151 was denied by the first respondent on the grounds that the matter not disclosed fell within s.44(1) of the Act.
All parties delivered comprehensive written submissions. The applicant’s written submissions consisted of a 14 page “Outline of Argument” in small single spaced print. There was a further, similarly typed “Argument in Reply” of in excess of three pages.
I do not intend to canvass in detail all the matters raised in the written submissions as the application can be disposed of quite shortly. It is brought pursuant to s.20 of the Judicial Review Act 1991 (Qld). It is implicit in s.30 of the Judicial Review Act that the Court has a discretion as to whether or not to make an order remitting the matter to which the decision relates to the decision maker, or quashing or setting aside the decision, or part thereof: see Hartigan v Queensland Corrective Service Commission (S.C. of Queensland No. 890 of 1993, 22 March 1995, unreported) and compare Century Metals and Mining NL v Yeomans (1989) 100 ALC 383 at 419. At the commencement of proceedings I requested the applicant to inform me of his purpose in bringing the application. I was attempting to ascertain whether there would be any material benefit to the applicant should he obtain access to the subject material. Although invited to do so, he could not identify any such benefit and, in substance, submitted that -
(a)it was sufficient for the applicant to show that the outstanding material should have been provided by the second respondent when requested by the applicant;
(b)there was a matter of general public interest involved in the legal issues which arose on the application.
In the exercise of my discretion I refuse to make the orders sought by the applicant. Even if the material sought was relevant to the rights of the applicant whilst a prisoner, the receipt of it now would not be of any material benefit to him. The first respondent’s determination the subject of this application was made after the respondent was released on parole. In relation to page 148, the only information which the applicant lacks is the identification on that page of one of the co-authors of the principal’s letter. The applicant has been provided with most of the contents of the principal’s letter which may be thought to have been relevant to the deliberations of the second respondent. Other parts which may, perhaps, have some relevance to that matter are generalised and unsubstantiated assertions and expressions of opinion. These parts add little substance to the part of the letter already disclosed. The general thrust of the document, as the first respondent determined, was an explicit submission that the Attorney-General should appeal against the Court of Appeal’s decision reducing the applicant’s sentence. It is possible that the document may be construed also as an exhortation to the Attorney-General to take steps to ensure that offences such as those committed by the applicant were met with heavier penalties in future. There was no appeal against sentence.
As appears later, the principal’s letter was provided to the Attorney-General in confidence. It was prepared by two citizens in order to address a matter which they regarded as one of public concern. Its contents were divulged to the second respondent without the express or implied consent of the authors of the document. The authors have expressed concern to the first respondent about the release to the applicant of any further part of the letter, including anything which divulges the identity of Mr Austin’s co-author. In these circumstances, as the applicant is unable to point to any material advantage which might flow to him from possession of the material, I regard it as desirable that I exercise my discretion against him. That is particularly so having regard to concerns expressed by the authors of the letter as to possible victimisation by the applicant. That there is no cogent evidence that the applicant might attempt to victimise the authors of the letters is not sufficient to remove the relevance of this consideration. To my mind it is sufficient that the authors have expressed such concern and that it is not irrational of them to be of such a state of mind.
The matters addressed below in relation to each of the three documents are also relevant to the exercise of my discretion. In the case of page 151, the desirability of protecting the privacy of victims of sexual offences and their near relatives is a relevant consideration.
Although, in view of the conclusion just expressed, it is not necessary for me to determine whether any of the points raised by the applicant are sustainable, in deference to the detailed submissions made to me I propose to consider briefly the points raised by the applicant which seem to me to be of most substance.
Page 151
On receipt of the letter by the second respondent, its officers, the applicant accepts, “informed him of the existence of the letter and that the letter requested that the ... family receive no further correspondence from the applicant”. The applicant further accepts that he was informed of the identity of the authors of the letter and that it was written in July 1994. The letter is extremely brief. The action taken in response to it is that which one would have expected the second respondent to take, had the letter contained only the information imparted to the applicant.
Section 44(1) of the Act provides -
“Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.”
The first respondent concluded, correctly in my view, that to disclose the parts of the letter left undisclosed would be to disclose matter concerning the personal affairs of persons. The first respondent took into account the provisions of s.6 of the Act and the need for the second respondent to balance the disclosure of the personal affairs of third parties against the public interest. The second respondent concluded, again, correctly in my view, that as much of the information in the letter adverse to the applicant had already been disclosed to the applicant, the strength of the public interest consideration had been substantially weakened. The first respondent also correctly concluded that there was a “strong public interest in protecting the privacy of victims of crime and their families, especially in circumstances where the victim was a minor and the crime was of a sexual nature”. The first respondent then decided that disclosure of the matters on page 151 not already disclosed would not, on balance, be in the public interest. I agree with that conclusion and can detect no relevant error of law on the part of the first respondent.
Pages 145-147 and 148
Section 46 of the Freedom of Information Act provides -
“46.(1) Matter is exempt if -
(a)its disclosure would found an action for breach of confidence; or
(b)it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.”
(2) Subsection (1) does not apply to matter of a kind mentioned in section 41(1)(a) unless its disclosure would found an action for breach of confidence owed to a person or body other than -
(a)a person in the capacity of -
(i)a Minister; or
(ii)a member of the staff of, or a consultant to, a Minister; or
(iii)an officer of an agency; or
(b)the State of an agency.”
The first respondent, in the letter of determination, noted that he accepted the evidence of Mr Austin that express assurances were given by the staff of the Attorney-General that the principal’s letter, preparation of which was requested by the staff, would be treated in confidence. The first respondent was entitled to reach this conclusion. He also accepted, implicitly, that the Attorney-General received the information in confidence. That conclusion was clearly open to him.
The applicant did not challenge the determination by the first respondent that disclosure of the subject matter would “found an action for breach of confidence”. The two points he advanced were that -
(a)s.46(1)(a) did not apply as, if an obligation was owed, it was owed to the authors of the letter in their capacity of “officers of an agency”. “Agency” is defined in s.8(1) as meaning “a department, local government or public authority”;
(b)if any such claim for confidentiality existed, it had been lost as a result of Mr Austin’s “lack of clean hands”.
The applicant submits that the letter was written by Mr Austin in his capacity as Principal of the Gordonvale High School. The letter is on the school’s letterhead. It is addressed to the Attorney-General and is expressed to be written by “T.W. Austin, Principal” and another. The letter expresses the authors’ concerns over the reduction in the applicant’s sentence, and impliedly, encourages the Attorney to appeal against the Court of Appeal’s decision. The sentence the subject of the complaint was not in respect of a past or present pupil of the Gordonvale State High School. Mr Austin may well have thought he was acting in his capacity as High School Principal in writing the letter but it is difficult to accept that a State School Principal could have any actual or ostensible authority to make submissions on sentence to the State’s Attorney-General. Mr Austin cannot confer on himself an authority which is lacking under his terms and conditions of employment.
Nor, in my view, does there appear to be any substance in the applicant’s submissions that Mr Austin would be unable to enforce any confidentiality because of a lack of clean hands on his part. I am content to assume, without deciding, that s.46(1)(a) will not apply in circumstances in which any action, which would otherwise be sustainable for breach of confidence, would fail in consequence of the existence of an equitable defence. The applicant contends that it appears from the principal’s letter that Mr Austin has made use in the letter of information which was necessarily revealed to Mr Austin in confidence. A part of the principal’s letter, already divulged to the applicant, states -
“And Mentink has made it clear to the boys step-father at the trial, that he wanted to continue the relationship”.
The applicant asserts that the authors of the principal’s letter could only have become aware of this matter as result of a person or persons divulging the contents of a without prejudice communication. He also asserts that the passage I have quoted contains a misrepresentation. If there was a misrepresentation there is no evidence that the authors of the letter were aware of it. The material does not establish that information in the letter was made known to Mr Austin as a result of a breach of any confidentiality. Furthermore, even if the information had been made known to Mr Austin as a result of a breach of confidence it is not shown that Mr Austin was aware or ought reasonably to have been aware of the existence of any such breach. I also have considerable sympathy with the point advanced by Mr Lee on behalf of the first respondent, that the circumstances were such that the law would not assist the applicant by enforcing an obligation of confidence: cf Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 at 451-456.
The applicant complains also that the first respondent’s terse dismissal of his “clean hands” argument constitutes a failure to give the reasons required by s.89(2) of the Act. The first respondent’s reasons referred to the relevant part of the applicant’s written submissions and stated that they “... do not disclose any reasonable basis for a defence to an action for breach of confidence”. There is ample authority for the proposition that the giving of inadequate reasons, by a tribunal when reasons are required to be given, may constitute a breach of the tribunal’s duty. However, in discharging the duty, it is not necessary for a decision-maker, whether judicial or administrative, to address, specifically and in detail, each and every issue raised by the applicant: Housing Commission of New South Wales v Tatmar Pastoral Company Pty Ltd [1983] NSWLR 376; Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462 at 476-9, 482-5; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. At pages 477-8 of Housing Commission of New South Wales (supra), Mahoney JA observed -
“Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O’Hara v. Evans (Court of Appeal, 23rd September, 1976, unreported); Colacicco v. Colacicco (Court of Appeal, 15th March, 1977, unreported). ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v. University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824, at 826.
But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.”
Hence the first respondent was entitled to dismiss the applicant’s arguments (which were clearly identified) as being without merit. In my view, they lacked any proven factual foundation.
I order that the application be dismissed.