Moloney v Motor Accident Commission

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MOLONEY v MOTOR ACCIDENT COMMISSION
[2013] SASCFC 58
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Stanley)
27 June 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - GENERALLY
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - PRESCRIBED AUTHORITIES AND AGENCIES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - SCHEDULES
The appellant sought an order of mandamus compelling the respondent to determine an application made by the appellant pursuant to s 13 of the Freedom of Information Act 1991 (SA) (“the Act”). The documents sought by the appellant were in respect of the function, business or affairs of the defendant relating to a claim or action under Part 4 of the Motor Vehicles Act 1959 (SA). The respondent refused to consider the application on the grounds that it considered itself an “exempt agency” within the definition of the Act, and that the appellant’s application was therefore not an application pursuant to section 13 of the Act. The appellant’s application for judicial review was dismissed. The Judge held that the respondent was an “exempt agency” for the purposes of the Act and was therefore not subject to a statutory duty to determine the appellant’s application.
The issue on appeal is whether the respondent is an “exempt agency” for the purposes of the Act in relation to the appellant’s application.
Held (allowing the appeal):
Per Kourakis CJ and White J, and Stanley J agreeing:
(1) Paragraph (f) in Sch 2 of the Freedom of Information Act 1991 (SA) should be construed as rendering the Motor Accident Commission an exempt agency in respect of any information relating to a particular claim or action under Part 4 of the Motor Vehicles Act 1959 (SA).
Per Kourakis CJ:
(2) The respondent is not an exempt agency in respect of information it holds by reason of its general management of its insurance business which functions under Part 4 of the Motor Vehicles Act 1959 (SA).
Per White J, Stanley J agreeing:
(3) In the absence of evidence permitting an application of the proper construction of par (f) to the documents requested by the appellant, it cannot be concluded that the Motor Accident Commission is an exempt agency in respect of the documents.
Per White J, Kourakis CJ and Stanley agreeing:
(4) It is not appropriate for this Court to order that the Motor Accident Commission “determine” the appellant’s application. The Court should do no more than to declare the correct construction of par (f) in Sch 2 of the Freedom of Information Act 1991 (SA).
Acts Interpretation Act 1915 (SA) s 26, s 26(b); Freedom of Information Act 1991 (SA) s 3, s 3(3), s 3A, s 4, s 12, s 13, s 16, s 18, s 19, s 20, s 22, s 23, s 25, s 35, s 36, s 39, s 41, Sch 1, Sch 2; Freedom of Information (Miscellaneous) Amendment Act 2001 (SA) s 4; Freedom of Information (Miscellaneous) Amendment Act 2004 (SA) s 4; Motor Accident Commission Act 1992 (SA) s 4, s 14, s 29B(1); Motor Vehicles Act 1959 (SA) s 99, s 102, s 104, s 107, s 110, s 111, s 111A, s 112, s 113, s 115, s 116, s 116A, s 123, s 123A, s 124, s 124A, s 124AB, s 125, s 125B, s 126, s 127, s 132, Pt 4, Sch 4; State Government Insurance Act 1992 (SA); State Government Insurance Act 1970 (SA) s 12, referred to.
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110; Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602; Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"matter", "in respect of", "a claim or action under Part 4 of the Motor Vehicles Act 1959"

MOLONEY v MOTOR ACCIDENT COMMISSION
[2013] SASCFC 58

KOURAKIS CJ: The appellant is a legal practitioner and a member of the Australian Lawyers Alliance (the ALA). A substantial part of his practice comprises the representation of plaintiffs in motor vehicle accident personal injury claims. In February 2011, after discussions with other legal practitioner members of the ALA, he made an application, pursuant to s 13 of the Freedom of Information Act 1991 (the Act), to the Motor Accident Commission (the MAC) for copies of:
•      its policies on the conduct of investigations following motor vehicle accidents;
•      its protocols on the treatment of persons injured in such accidents;
•      its policies on obtaining police reports of such accidents.
•      any agreement it had made with South Australian Police on the provision of accident reports;
•      any agreement it had made with a named medical provider.
The MAC is listed as an exempt agency in paragraph (f) of Schedule 2 of the Act, “in respect of matters relating to a claim or action under Part 4 of the Motor Vehicle Act 1959”, (the MAC exemption). The MAC refused to consider the application on the grounds that the information requested by the appellant came within the MAC exemption.
On 29 September 2011 the appellant issued a summons in this Court in which he sought an order in the nature of mandamus directed to the MAC requiring it to deal with his application in accordance with the provisions of the Act. On 27 September 2012 a Judge of this Court dismissed the appellant’s summons. The Judge held that the MAC was an exempt agency with respect to the information sought and was therefore not subject to a statutory duty to deal with the appellant’s application in accordance with the Act.
In my opinion the MAC is an exempt agency in respect of information it holds arising out of the making of a particular claim or claims on persons it insures pursuant to Part 4 of the Motor Vehicles Act 1959 (SA) (MVA). However, it is not an exempt agency in respect of information it holds by reason of the general management of its insurance business under that Part. Functions such as the formulation and implementation of business policies, practices and arrangements under which the claims are handled are part of the general management of its insurance business. The conclusion that information of that kind does not fall within the scope of the MAC exemption does not mean that those policies, practices and arrangements must necessarily be disclosed. It simply means that the right to access them is governed by the provisions of the Act. As will shortly be seen, the Act exempts from disclosure those documents of an agency which are subject to legal professional privilege, or the disclosure of which would, for other reasons, be contrary to the public interest. I would therefore allow the appeal. My reasons follow.
Motor Accident Commission Act 1992 (SA)
The MAC is the continuation of the body corporate once known as the State Government Insurance Commission.[1] The State Government Insurance Commission was established by the State Government Insurance Act 1992 (SA). Its statutory functions included the undertaking of insurance business of any kind, the investment of its funds and the performances of any additional function prescribed by regulation.[2] On 22 June 1995 the State Government Insurance Commission Act 1992 (SA) was amended by the SGIC (Sale) Act 1995 (SA) and renamed the Motor Accident Commission Act 1992 (SA). Section 14 of the Motor Accident Commission Act 1992 (SA) confers functions and objectives on the MAC. Section 14 provides:
[1] Motor Accident Commission Act 1992 (SA), s 4.
[2] State Government Insurance Act 1992 (SA).
14—Functions and objectives of Commission
(1)The functions of the Commission are—
(a) to provide policies of compulsory third party insurance under Part 4 of the Motor Vehicles Act 1959, and to be the sole approved insurer under that Part until such time as the Minister responsible for the administration of that Act forms the view that it would be in the best interests of the State to invite and approve other persons or bodies of persons to be insurers under that Part;
(b) to maintain the Compulsory Third Party Fund;
(c) to perform the functions of the nominal defendant while the Commission holds that office under Part 4 of the Motor Vehicles Act 1959;
(d) to provide financial or other support for and promote programs designed to reduce the incidence or impact of road accidents and road accident injuries;
(e)to carry on any other residual insurance business arising from its earlier operations as the State Government Insurance Commission (but only in order to wind up that business);
(f)to perform any functions of a kind prescribed by regulation;
(g)to perform any functions that are necessary or convenient for or incidental to the performance of functions referred to above.
(2) The Commission may perform its functions within or outside the State.
(3) The principal objectives of the Commission in providing compulsory third party insurance are—
(a) to achieve and maintain a sufficient level of solvency in the Compulsory Third Party Fund; and
(b) to minimise premium charges having regard to the Commission's objective of achieving and maintaining a sufficient level of solvency in the Fund; and
(c)to deal with claims for compensation in accordance with law as expeditiously as possible.
The MAC is the approved compulsory third party insurer pursuant to Part 4 of the MVA, and is assigned to be the Nominal Defendant, pursuant to 116A of the MVA.[3] The MAC holds a Compulsory Third Party Fund (CTP Fund) as a separate fund for its compulsory third party insurance business.
Freedom of Information Act 1991 (SA) (the Act)
[3] Motor Vehicles Act 1959 (SA), s 116A.
The Freedom of Information Act 1991 (SA) confers a legally enforceable right on persons to take access to an agency’s documents in accordance with the Act.[4] A document is anything in which information is stored. Section 12 of the Act provides:
[4] Freedom of Information Act 1991 (SA), s12.
12—Right of access to agencies' documents
A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act.
Section 4 of the Act, relevantly to this appeal, defines an agency to include an incorporated body established for a public purpose under an Act of the State which is not an exempt agency. An exempt agency is defined by the same section to mean a person or body referred to in Schedule 2 of the Act, or a person or body referred to in that Schedule in respect of functions or classes of information specified in that Schedule.
Schedule 2, which includes the MAC as an exempt agency in sub-paragraph (f), currently provides as follows:
Schedule 2—Exempt agencies
The following are exempt agencies:
(e)     all Royal Commissions;
(f) the Motor Accident Commission in respect of any matter relating to a claim or action under Part 4 of the Motor Vehicles Act 1959;
(g)     the Essential Services Commission in relation to –
(i)information gained under Part 5 of the Independent Industry Regulator Act 1999 that would, if it were gained under Part 5 of the Essential Services Commission Act 2002, be capable of being classified by the Commission as being confidential under section 30(1) of that Act; and
(ii)information gained under Part 5 of the Essential Services Commission Act 2002 that is classified by the Commission as being confidential under section 30(1) of that Act;
(h)     the Auditor-General;
(i)    the Attorney-General, in respect of functions related to the enforcement of the criminal law;
(j)    the Parole Board;
(k)     the Solicitor-General, the Crown Solicitor, the Director of Public Prosecutions and the Commissioner for Victims' Rights;
(l)    the Ombudsman and the Police Ombudsman;
(m)    the Public Trustee, in respect of functions exercised as executor, administrator or trustee;
(n)     the South Australian Government Financing Authority, the Local Government Financing Authority and the South Australian Superannuation Fund Investment Trust;
(o)     a Minister of the Crown in respect of the administration of the former South Australian Development Fund or the Industry Investment Attraction Fund (or a fund substituted for the Industry Investment Attraction Fund);
(p)     South Australia Police in relation to information compiled by—
(i)    the former Special Branch; or
(ii)     the former Operations Planning and Intelligence Unit; or
(iii)the Operations Intelligence Section (or a body substituted for the Operations Intelligence Section); or
(iv)the Anti-Corruption Branch (or a body substituted for the Anti-Corruption Branch);
(q)     the Local Government Association.
The Schedule was in substantially the same terms when the MAC exemption was first enacted.[5]
[5] The differences are that there was no paragraph (g), the addition of Commissioner for Victims Rights to paragraph (k), and the substitution of the Police Ombudsman for the Police Complaints Authority in paragraph (l).
The right conferred by s 12 of the Act imposes a correlative obligation on agencies which are not exempt agencies to consider an application in accordance with the subsequent provisions of Part 3 of the Act. For example, the agency’s obligation is preconditioned on the making of an obligation in accordance with the prescriptions of s 13 of the Act and an agency has a discretion to refuse to give access if the application if oppressive.[6]
[6] Freedom of Information Act 1991, s 18.
Relevantly to this mater, pursuant to s 20 of the Act, an agency may refuse access to those classes of documents which are listed as exempt in Schedule 1 of the Act. There are two classes of exempt documents which should be noted for the purposes of this appeal. The first class comprises documents which are protected by legal professional privilege and other confidential material. The second class is documents which contain matters, the disclosure of which could reasonably be expected to have a substantial adverse effect on an agency’s performance of its functions and which it would be contrary to the public interest to disclose.
The Motor Vehicles Act 1959 (SA) (the MVA)
Part 4 of the MVA provides for compulsory third party injury motor vehicle insurance. Section 107 of the MVA imposes an obligation on insurers under that Part to indemnify the persons or classes of persons specified in the policy in respect of any liability which the policy purports to cover. Schedule 4 of the MVA prescribes the terms of the compulsory insurance policy. Under that policy the insurer indemnifies the owner, driver or passenger of the insured motor vehicle in respect of a liability for death or bodily injury caused to any person arising out of the use of the vehicle.
The MVA provides for claims to be made against the nominal defendant when, after due enquiry and search, the identity of the vehicle has not been ascertained[7] and when the driver of an uninsured vehicle causes injury. [8]
[7] Motor Vehicles Act 1959 (SA), s 115.
[8] Motor Vehicles Act 1959 (SA), s 116.
The compulsory third party insurer, under Part 4 of the MVA, may bring an action for recovery of damages paid in accordance with the statutory indemnity against an insured person pursuant to s 124A of the MVA if the insured person has contravened provisions of the policy of insurance prescribed by that section. The insurer may also bring an action pursuant to s 124AB of the MVA for recovery of an excess in the circumstances specified therein.
Section 124(1) of the MVA imposes an obligation on the owner and driver of a vehicle to report a motor vehicle accident in which a person has been injured to the compulsory third party insurer of the vehicle and to cooperate with the insurer “in respect of a claim made in respect of the accident”. Section 124(4) of the MVA provides:
Where a claim is made upon an insured person in respect of an accident of a kind referred to in subsection (1), the insured person must as soon as practicable give notice of the claim to the insurer and furnish the insurer with such information in relation to the claim as the insurer may reasonably require.
It is an offence to give a false report to or to fail to cooperate with the insurer. The insurer is empowered to prosecute an owner or driver who offends in that way.[9]
[9] Motor Accident Commission Act 1992 (SA), s 29B(1).
The compulsory third party insurer is given extensive powers to deal with claims brought against an insured person pursuant to s 125(1) of the MVA in these terms:
(1)     An insurer may, on behalf of an insured person—
(a)     conduct any legal proceedings in respect of circumstances out of which a claim against the insurer has arisen, or may arise; and
(b)     conduct and control negotiations in respect of any claim against the insured person; and
(c)     at any stage of those negotiations or proceedings pay, compromise or settle any claim against the insured person.
Pursuant to s 127 of the MVA “claimants” are required to submit themselves to medical examinations by medical practitioners nominated by the compulsory third party insurer. A claimant is defined as a person who has made a claim, or on whose behalf a claim has been made, for bodily injury caused by or arising out of the use of a motor vehicle.
The Scope of the Exemption
On appeal both parties submitted that “a claim … under Part 4 of the Motor Vehicles Act” referred to a claim made by a person, who has suffered injury arising out of the use of a motor vehicle, against the insured specified in the policy. In my view it is apt, given the statutory context, to describe a claim for injury for which the insurer is bound to indemnify the driver or owner of a motor vehicle as “a claim ... under Part 4”. I refer in particular to the use of that very term and its cognate expression in s 124(4) and s 127 respectively, the compulsory nature of the insurance scheme established by Part 4, the very limited grounds on which the insurer’s indemnity can be withheld, and the insurer’s extensive statutory powers over both the claimant and the insured in the management of those claims. A claim made by the injured person is a claim under Part 4 of the MVA because it is a claim which will be considered, accepted or defended by the compulsory third party insurer under the provisions of that Part even though if an action is brought to enforce the claim, it will be one in tort against the owner, driver or passenger of the motor vehicle.
Moreover, the debate in Parliament when the MAC exemption was enacted was concerned with the conduct of those very claims by MAC. That much, at least, is plain from a reading of Hansard.
There is a subsidiary question of construction that is in dispute. It concerns whether the words “a claim” should include the plural. In my view, very little turns on whether the word “claim” is taken to include the plural. Whether the general policies are exempt only if they relate to a single claim or whether they are also exempt if they relate to a number of claims will not much affect the resolution of the issue of disputed construction which is before the Court. A general administrative policy does not relate any less to a single claim merely because it also relates to many other claims. In any event there is no indication in the MAC exemption of a legislative intention to exclude s 26(b) of the Acts Interpretation Act 1915 (SA). I interpret the word claim in the MAC exemption to include the plural.
The primary question of construction in dispute is whether the “matter” on which the MAC exemption operates is a function or a class of information, and the width of the connecting phrase “relating to”.

The definition of exempt agency was enacted by an amendment to the Act in 2004, some years after the enactment of paragraph (f) of Schedule 2 in 2002. Nonetheless, the legislative definition of exempt agency thereafter required the scope of the qualified exemptions given in Schedule 2, whether before or after its enactment, to be determined by reference to the dichotomy of functions and classes of information it establishes.
The other placita of Schedule 2 from the time of the enactment of the MAC, in which the exemption is limited to a function, introduce the function with the phrase “in respect of”. When the exemption is limited to a class of information, the phrase “in relation to” is used.
The use of the phrase “in respect of” in placitum (f) is therefore an indication that the word “matter” is used to mean a function, but it is not a strong indication. That same conjunction is used to refer to both functions and classes of information in the definition of exempt agency in s 4 of the Act. The difficulty presented by placitum (f) is the use of the word “matter” instead of the word “function” or the words “classes of information”. The failure to use one or other of those terms leaves some ambiguity as to which side of the dichotomy between function, and class of information, the word “matter” falls.[10]
[10] Paragraph (o) refers to the “administration” of the South Australian Development Fund but administration is plainly a function.
There is some other textual support for giving the word “matter” the meaning of function. The ordinary meaning of matter, an “affair or business”, is closer to the meaning of “function” than “information”. Moreover, the phrase which follows, and qualifies, the word matter does not obviously define a class of information in that the information is not identified by reference to type, kind or quality. I acknowledge that in one sense the information shares the quality that it “relates” to such claims. However, to my mind the word “class” suggests and, in the context of the Act, one would expect it to mean a class defined by such criteria as the nature of the information, its author or its source. It is by criteria of those kinds that the classes of information in the other paragraphs of Schedule 2 are defined.
Perhaps of greater importance is the practicality of defining classes of documents by reference to readily ascertainable criteria such as the nature of the information, its authorship or source. The Act establishes an administrative scheme which depends, for its efficacy, on the decision maker and any reviewing authority being able to make determinations without the need for substantial extraneous material. The phrase “relating to a claim”, if matter refers to information, requires an evaluative judgment of the connection between the information sought and the subject matter of a claim or claims. The problematic nature of that enquiry underlies the Courts’ reluctance to allow a party to issue a subpoena seeking documents “relating to” or “with respect to” an issue in proceedings. If, on the other hand, matter means function, the relationship between the document and the function could, in the generality of cases, be determined from its content, source or authorship.
However, in addition to bearing the meaning “affair or business”, the word matter is also often used to refer to “subject matter”. It is in that sense that the Act frequently and consistently uses the word matter to mean information when referring to the contents of documents.[11] In my view the use of the word matter in the Act in this way is a strong indication that it means information in the MAC exemption.
[11] Freedom of Information Act 1991 (SA) s 16, s 18, s 20, s, 22, s 23, s 25, s 35, s 36, s 39, s 41, Sch 1, Sch 2.
Overall, the use of the word matter in the context of the Act strongly supports its construction to mean information.
There is to my mind another strong textual consideration which suggests that “matter” does not mean “function”. If matter was intended to refer to a function, the identification of that function as one which relates to “a claim”, or a particular number of claims if the plural is also intended,[12] seems inapt. If matter means function, the function would more aptly have been identified as one relating to the “conduct” of claims under Part 4, just as in paragraph (m) the exemption accorded to the Public Trustee is “in respect of functions exercised as executor” and in paragraph (i) the exemption of the Attorney-General is “in respect of functions related to the enforcement of the criminal law”. However, “a claim or action under Part 4” is made or brought by an injured person and is not a reference to the exercise of a power or the performance of a function by the MAC.
[12] Acts Interpretation Act 1915 (SA).
For several reasons the debate recorded in Hansard when the Attorney-General moved the amendment to limit the exemption is not very helpful on the proper construction of the word “matter”. First, the reason for limiting the exemption was related by the Attorney-General to the broader statutory functions conferred on the MAC than its predecessor the SGIC. However, both before and after the amendment, the functions of both the SGIC and MAC included such additional functions as might be conferred by regulations and the performance of incidental functions. There is little practical difference in the functions actually performed by both entities.
Secondly, the parliamentary debate proceeded on the assumption that in the absence of an exemption of the MAC, as an agency, legal professional privilege and other confidentiality would be lost, thereby compromising MAC’s claims management. That assumption failed to have regard to the exemptions of the categories of documents in Schedule 1 of the Act from the obligations imposed on agencies bound by the Act. Nonetheless, the focus of the debate was clearly on the sensitivity of information about particular claims. That focus reinforces the textual and contextual support for construing the word “matter” to mean “information”.
To my mind the most obvious mischief to which the former blanket exemption afforded to the SGIC was, and the current limited MAC exemption is directed, is the additional administrative burden which would be imposed on the MAC if it were faced with requests for disclosure both under the Act and by way of discovery in actions brought against insured persons. The MAC handles many claims. At the end of financial year 2012 it was managing over 10,000 files, of which 348 claims were nominal defendant claims.[13] The potential administrative burden of responding to applications for information related to the management of those claims, particularly if it were thought that a forensic advantage might thereby be obtained by plaintiffs in motor vehicle accident claims, is substantial. The fees chargeable for information provided under the Act are unlikely to result in full costs recovery.
[13] MAC Annual Report 2011-2012.
In the course of the debate the Report of the Legislative Review Committee concerning the Freedom of Information Act 1991 (SA) delivered some years earlier was referred to.[14] The Report recorded the Committee’s concern that Freedom of Information Act requests against government agencies which were parties to litigation extended the obligation of those agencies to disclose documents beyond the scope of the applicable court rules and, as a consequence, imposed a costs burden for doing so which was not recoverable in the litigation. However, identification of those concerns as the mischief to which the MAC exemption was addressed does not help much to resolve the question of construction before the Court because the administrative and costs burdens on the MAC are greatly reduced whether the claims management function of MAC, or claims information as a class, is exempted.
[14] Fourth Session, Forty Ninth Parliament 15 September 2000.
Given the uncertainty left by the competing indications to which I have referred, the interpretative direction contained in the Act itself assumes some importance. Section 3A of the Act directs courts to construe the Act in a way which furthers its objects. Those objects include, relevantly to this matter, the promotion of openness in government, including its agencies, and the facilitation of the more effective participation by the public in the making and administration of policies.[15] The objects of the Act would be advanced if information about the general arrangements sought by the appellant were subject to the Act’s provision as to access. Those provisions, as I earlier observed, exempt documents containing that information from disclosure if it is subject to legal professional privilege or its disclosure is adverse to the public interest. However, to the extent that documents evidencing the general arrangements are not exempt for those reasons, their disclosure, in accordance with the Act, would promote its objects. It is important to keep in mind that the statutory mandate to advance the objects of the Act cannot be applied in the abstract and does not allow for ad hoc decisions to be made with respect to particular documents, such as the documents sought by the appellant in his application. It is necessary to keep in mind the constructional choices which appear from the text of the Act, and to evaluate the competing constructions so identified, by reference to the direction to prefer a construction which advances the objects of the Act.
[15] Freedom of Information Act 1991¸s 3(3)(a) and s 3(3)(b).
The constructional choice to which the direction must be applied, the choice between reading the word “matter” as a function or class of information, appears to be this. If matter means function, the exemption as a whole is given an operation which is relatively clear in that it does not require the making of value judgments about the degree of connection between the information and a particular claim or claims. In effect, the exemption applies to the MAC in respect of its functions of management of (relating to) a claim or claims made under Part 4. In so far as a document sought contains information generated or obtained in the exercise of that function the Act would not impose any obligation on the MAC to give access to it. General claims management policies and standing arrangements with other organisations are made in the exercise of that function, even though they are not specific to a particular claim or claims. On the other hand, investment of the CTP fund and road safety campaigns are not part of the claims management function. Reports based on claims information used for the purpose of setting premiums or providing advice about legislative change are also, arguably, not generated as part of the claims management function.
However, if matter means information, the MAC exemption has slightly different consequences. If matter means information, then the word “relating” requires a comparison between the information sought and the information obtained or generated about a particular claim or number of claims. The information sought will be information relating to a claim or claims if it was obtained or generated in the management of a claim or claims, or if it, in some way, incorporates that information. The information sought might also be information relating to a claim or claims if it discloses information about the way in which a claim or claims are, or may be, handled. In this respect, there may be some difficulty in determining whether the connection is sufficient to bring the information sought within the scope of the words “relating to”. Difficult questions may also arise about whether reports about the numbers, types and costs of claims for the purposes of actuarial calculations to guide the setting of premiums contain information relating to a claim or claims.
On a theoretical level, it might be thought that if matter means information, the “relating to” test burdens a FOI officer with the herculean task of considering all claims to see if the general policy or arrangement sought is sufficiently connected to one or more claims to be information relating to that claim. However, on a practical level, it is unlikely to do so.
First, it is likely that many arrangements and policies will be closely connected to the management of a particular claim, or claims, and will, therefore, attract the agency exemption. After these documents are identified for the first time, the burden will be reduced.
Secondly, the number of general policy documents which fall outside the agency exemption, and which are therefore subject to the Act, will be very much smaller than the very many documents found in the great number of files created when a claim under part of the MVA is made. The task of considering whether to disclose policy and strategy documents is likely to be manageable. Importantly, if matter means information, the very many documents generated in each claims file will be covered by the agency exemption just as they would be if matter means function.
Thirdly, I again emphasise that those documents which fall outside the agency exemption may be covered by one or more items of the exempt documents schedule if they have a tendency to compromise the integrity of the management of claims under Part 4 of the MVA. Again, after those documents are initially identified, the burden on FOI officers will be reduced.
I acknowledge that many, if not all, of the difficulties mentioned in the preceding paragraph might also be avoided if the phrase “relating to a claim etc” was construed as the appellant contends; to mean peculiarly relating to a particular claim or action, or to any one or more of those claims and actions. However, the phrase “relating to” is a phrase of wide import.[16] Ordinarily, the connection need not be an immediate or direct one. Plainly enough the arrangements sought are significant enough to legal practitioners who, like the appellant, are members of the Australian Plaintiff Lawyers Association to have brought about the making of the application. In the ordinary course, much less than a unique connection is enough to fall within the connotation of the word “relating”.
[16] Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, 111; Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602, 620 (Taylor J); Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, [87] (McHugh, Gummow, Kirby and Hayne JJ).
Conclusion
After evaluating the competing interpretative considerations to which I have referred, I would hold that matter means information and that information relates to a claim or claims if it was obtained or generated in the management of a particular claim. General policies and arrangements of the kind sought by the appellant are made to guide and regulate the MAC’s claims management business but they are not generated in the handling of a particular claim or claims. In effect, it is the claims file which is exempted, but what is or is not in the claims file cannot, of course, be conclusively determined by the filing practices of the MAC or its agents.
I would allow the appeal and set aside the judgment below. I am minded to refrain from making an order in the nature of mandamus for the reasons given by White J. There may be an implication arising out of the structure of the Act that an agency, to which an application has been made, has an obligation in law, and not just as a matter of good administration, to consider whether or not it is an exempt agency. However, that issue was not agitated on the appeal. Subject to hearing from the parties, I would make a declaration as to the proper construction of the MAC exemption in the terms proposed by White J.
WHITE J: Section 12 of the Freedom of Information Act 1991 (SA) (FOI Act) provides that a person has a legally enforceable right to be given access to an “agency’s” documents in accordance with that Act. By s 19(1) of the FOI Act, an “agency” must consider any application made to it for access to a document and, amongst other things, “determine” whether access to the document is to be given (either immediately or after deferral) or is to be refused.
The question on this appeal is whether the Motor Accident Commission (MAC) is an “exempt agency” with the effect that ss 12 and 19 do not apply in relation to certain documents sought by the appellant. Those documents, to which I will refer as “the requested documents”, are listed in [1] of the reasons of Kourakis CJ.
It was common ground that MAC is an incorporated body established for a public purpose by an Act of the South Australian Parliament and, unless it is an “exempt agency”, is within par (f) of the definition of “agency” in s 4(1) of the FOI Act.
“Exempt agency” is defined in s 4(1) of the FOI Act as follows:
Exempt agency means—
(b)a person or body referred to in Schedule 2 or a person or body referred to in that Schedule in respect of functions or classes of information specified in that Schedule; or
(c)an agency declared by regulation to be an exempt agency or declared by regulation to be an exempt agency in respect of functions or classes of information specified in the regulation.[17]
[17] The enumeration in the definition reflects the fact that when first enacted, the definition included a par (a), “any council”. Paragraph (a) was removed with effect from 1 July 2002 by s 4(d) of the Freedom of Information (Miscellaneous) Amendment Act 2001 (SA).
Paragraph (b) of the definition contemplates that a person or body may be wholly or partly exempted as an agency. A partial exemption may exist in respect of specified functions of the agency or in respect of specified classes of information held by the agency. It is possible that the one agency may be exempted in relation to both a specified function and in respect of a specified class of documents, but it was not suggested that that was so in the present case.
Schedule 2 to the FOI Act is set out in full in the reasons of Kourakis CJ. By par (f) of that Schedule, MAC is specified to be an exempt agency “in respect of any matter relating to a claim or action under Part 4 of the Motor Vehicles Act 1959”.
The appellant contended that the effect of par (f) was to exempt MAC as an agency in respect of a class of information, namely, documents relating to individual third party claims or actions, and in respect of that class only.
MAC, on the other hand, contended that par (f) excluded it as an agency in respect of its functions generally in relation to claims or actions under Pt 4 of the Motor Vehicles Act 1959 (SA) (MVA). As it considered that the requested documents related to its exempt functions, it had declined to “respond” to the appellant’s application for access to those documents.
By his application to this Court for judicial review, the appellant sought an order that MAC “determine” his application for access to the requested documents. In effect, he sought an order requiring MAC to discharge the obligation imposed on an agency by s 19 of the FOI Act to determine his application for access.[18]
[18] Section 19(1) of the FOI Act provides:
(1)After considering an application for access to a document, an agency must determine—
(a)whether access to the document is to be given (either immediately or subject to deferral) or refused; and
(b)if access to the document is to be given—any charge payable in respect of the giving of access; and
(c)any charge payable for dealing with the application.
As s 19(1) obliges only agencies as defined (and not exempt agencies), an order to the effect sought by the appellant could be made only if the Court is satisfied that MAC is not an exempt agency in respect of the requested documents, or at least in respect of some of them. That would involve the Court determining two matters: first, the proper construction of par (f) in Sch 2 and, secondly, the proper characterisation of the requested documents having regard to that construction so as to determine whether they relate to a matter in respect of which MAC is exempt.

The evidence and submissions of the parties before the Judge focussed on the opposing constructions of par (f) and did not address the proper characterisation of the requested documents. The appellant’s submissions seemed to assume that if the construction of par (f) for which he contended was upheld, it would follow that MAC is not an exempt agency in respect of the requested documents. The appellant’s submissions also seemed to acknowledge, at least implicitly, that if his proposed construction was not upheld, then MAC was exempt as an agency in respect of the requested documents and that he would not be entitled to access any of them. MAC’s submissions, on the other hand, did not, either implicitly or explicitly, accept the former of these assumed positions. This creates a difficulty to which I will return later.
The Decision of the Judge
The Judge rejected the appellant’s contention that MAC is an exempt agency only in respect of information relating to particular third party claims or actions, as distinct from such claims or actions as a class.[19] He gave seven reasons for that conclusion:
1. A plain reading of par (f) in Sch 2 contradicts the interpretation for which the appellant contended.[20]
2. The use of the singular indefinite article “a” before the singular nouns “claim or action” is not determinative (as the appellant had contended) because s 26(b) of the Acts Interpretation Act 1915 (SA) provides that in every Act every word in the singular number will be construed as including the plural number.[21]
3.     The word “matter” in par (f) is used in the sense of “affair or business”, which is akin to that of a function, and not in the sense of “information”.[22]
4. Generally Sch 2 uses the expression “in respect of” in reference to functions and the expression “in relation to” in reference to information. Hence, the use of the expression “in respect of” in par (f) suggests that “matter” refers to a function rather than to information.[23]
5.     The appellant’s interpretation of par (f) leaves the word “matter” with little work to do and does not give full effect to all the words in the paragraph.[24]
6.     Considerations of legislative history do not support the appellant’s interpretation.[25]
7.     The appellant’s interpretation produces results which are artificial and which cannot be justified.[26]
A Claim or Action under Part 4 of the Motor Vehicles Act 1959 (SA)
[19] Moloney v Motor Accident Commission [2012] SASC 170.
[20] Ibid at [16].
[21] Ibid at [13].
[22] Ibid at [17]‑[18].
[23] Ibid at [18].
[24] Ibid at [19].
[25] Ibid at [20]-[22].
[26] Ibid at [23].
An initial issue is the meaning of the expression “a claim or action under Part 4 of the [MVA]” used in par (f).
Part 4 of the MVA establishes the scheme of compulsory third party insurance. It provides that, subject to certain qualifications, a person must not drive a vehicle on a road unless there is in force in relation to the vehicle a policy of insurance which complies with the Part (s 102). It then specifies that, in order to be compliant, the policy must insure the owner, any driver and any passenger in respect of all liability which may be incurred by them in respect of the death or bodily injury to another caused by, or arising out of, the use of a vehicle (s 104). Schedule 4 to the MVA prescribes terms of the required policy, and s 99 contains a number of definitions applicable to those terms.
Only persons who are approved as an insurer under Pt 4 may issue policies of insurance. However, for many years MAC, previously known as the State Government Insurance Commission (SGIC),[27] has been the sole approved insurer providing compulsory third party insurance under Pt 4 of the MVA. This was the case well before the enactment of the FOI Act in 1991.
[27] Motor Accident Commission Act 1992 (SA), s 4(1).
Part 4 establishes a number of claims and entitlements, with provision for actions for their enforcement. Subject to certain qualifications, a judgment obtained against a tortfeasor can be enforced against an insurer (s 112) and injured persons may proceed directly against an insurer if the insured person is dead or cannot be found (s 113). In addition, claims may be brought against the nominal defendant if the vehicle causing the death or injury is not identified or is uninsured (ss 115-116). Health professionals who have rendered emergency treatment to injured persons and those who have conveyed injured persons may recover the reasonable costs of doing so from the insurer (s 110). The cost of hospital treatment for injured persons may be recovered from an insurer in specified circumstances (s 111), as can the costs of certain burials (s 111A). Part 4 also vests entitlements in approved insurers: they can recover monies paid or costs incurred from drivers and insured persons in certain circumstances (ss 123, 124A and 124AB). An insurer can bring an action for the disqualification of a driver (s 132) and an action for the acquisition of a vehicle (s 125B).
The expression “a claim or action under Part 4 of the [MVA]” in par (f) can be understood naturally as referring to this variety of claims and actions. Each of them satisfies the description of “a claim or action” under that Part.
On the other hand, the claim of an injured person against a negligent driver to which the compulsory third party insurance policy will respond would not ordinarily be understood as a claim or action under Pt 4. Such a claim does not arise under Pt 4 of the MVA, nor is it regulated by that Part. It is instead a claim recognised by the common law. The cause of action of an injured person in the ordinary case does not depend on any element of Pt 4, and it does not form any part of the material facts to be pleaded by a plaintiff in such cases. When injured persons seek damages from negligent drivers, the claim made under Pt 4 is that of the driver to the insurer for indemnity in respect of the liability.
Further still, there are indications in Pt 4 itself that an injured person’s claim against a negligent driver is not regarded as a claim under that Part. In several provisions, Pt 4 distinguishes between a claim made against the insured person, on the one hand, and proceedings under Pt 4, on the other. This is seen most clearly in s 124(3a), (4), and (7). Section 124(7) refers explicitly to “proceedings under this Part” whereas subs (4) refers to claims made upon the insured person. Subsection (3a) imposes an obligation on insured persons to cooperate with the insurer “in respect of a claim made in respect of [an] accident”. The provisions in ss 125(1) and 126 are also pertinent in this respect.
In addition, s 104 specifies that a policy of insurance complying with Pt 4 must insure drivers and others in respect of “all” liability that may be incurred in respect of death or bodily injury to any person caused by or arising out of the use of the vehicle “in any part of the Commonwealth”. This includes liabilities which may be incurred under statutory regimes outside South Australia and to which the MVA does not otherwise have any application.
The terminology used in Pt 4 of the MVA does not, of course, control the meaning of a term used in the FOI Act, but given the FOI Act’s reference to Pt 4 of the MVA, it is appropriate to have regard to the kinds of claims and actions contemplated by Pt 4, and to the meaning which it gives to the cognate expression.
Construing the expression “a claim or action under Part 4 of the [MVA]” as meaning “a claim or action established by, or arising under, Part 4 and a claim or action to which the compulsory third party insurance policy required by Part 4 may respond” involves, at the very least, reading into par (f) a number of additional words.
If the expression “a claim or action under Part 4” in par (f) of Sch 2 is understood as a reference only to claims and actions arising under Pt 4 itself, it may be but a short step to conclude that MAC is not an exempt agency in respect of at least some of the requested documents.
However, despite these considerations, there is a question whether the expression “a claim or action under Part 4 of the [MVA]” may encompass the claim of an injured person against a negligent driver.
In the hearing before the Judge, neither party argued for the narrower construction of par (f). Further, on the appeal neither party, in particular, the appellant, contended for such a construction. It also appears that it was the subjective understanding of those involved in the enactment of par (f) that the expression extended to claims brought by injured persons against negligent drivers, and not just to those claims and actions established by Pt 4 itself. It may well be that the circumstance that SGIC/MAC has been the sole approved insurer for many years has led some to regard the ordinary claims of injured persons against negligent drivers as claims under Pt 4 of the MVA and to overlook that the substantive effect of the Part is to provide insurance from which claims made independently of the Part may be met.
Given that I consider that the appeal should be upheld in any event, I consider it inappropriate to express a concluded view on this issue. It is preferable that resolution of the issue be deferred until the Court hears full argument on it. Accordingly, I will approach the resolution of the issues on the appeal on the basis contemplated by the parties’ submissions. I make it plain, however, that I would not regard the resolution of the present matter on this basis as precluding in any later proceedings a submission that the narrower construction of par (f) is the appropriate construction.
Consideration
Paragraph (f) of Sch 2 has been in its present form since 1 July 2002. It was inserted by the Freedom of Information (Miscellaneous) Amendment Act 2001 (SA) (the 2001 Amendment). At the time par (f) was inserted, the definition of exempt agency in s 4(1) of the FOI Act did not require any distinction in Sch 2 between functions and classes of information, as does the present definition.[28] This may in part explain the use by the legislature of the protean word “matter” in par (f) rather than the terminology of “function” or “information” which might otherwise have been expected.
[28] The definition of exempt agency was amended to its present form in 2004 by the Freedom of Information (Miscellaneous) Amendment Act 2004, s 4(c)-(d). In his Second Reading Speech on the Bill resulting in the amendment, the Minister said that its purpose was to make it clear “that an agency does not have to be entirely exempt (ie, it can be exempt in respect of certain functions or categories of information”: South Australia, Parliamentary Debates, House of Assembly, 28 August 2002 at 1403.
However, although par (f) of Sch 2 may not have been drafted with the distinction in mind, the current definition of exempt agency requires that the distinction be drawn. In particular, the determination of the proper meaning of the word “matter” in par (f) as “function” or as “class of information” is likely to result in materially different results for the outcome of the present judicial review proceedings. As the parties’ submissions recognised, to construe par (f) as exempting MAC in respect of a defined function is likely to result in an exemption of wider ambit than one in respect of a specified class of information.
The word “matter” is capable of a variety of meanings. Relevantly for present purposes, it is capable of meaning matter in the sense of “the material or substance of a discourse, book, etc”; or matter in the sense of “things written or printed”; or matter in the sense of “a thing, affair or business”.[29] The third of these senses has a meaning akin to that of “function”; whereas the first and second senses have a meaning which is more naturally aligned with that of “information”.
[29] Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 5^th ed, 2009).
Schedule 2 is to be construed having regard to its text, context and purpose. It is convenient to address first some indications that the word “matter” in par (f) is not used with the meaning of “function”.
As to text, it is significant, to my mind, that par (f) uses the singular indefinite article. It is an indication that it was not intended that the “matter” relate to claims and actions as a class. Of course, s 26(b) of the Acts Interpretation Act 1915 (SA) has the effect, as the Judge noted, that the singular includes the plural. However, in my view, that means only that the “matter” may relate to a particular claim or action or to particular claims or actions. Section 26(b) does not indicate that the reference is to claims or actions as a class, rather than particular claims or actions.
It may not be entirely inapposite to regard the expression “any matter relating to a claim or action” or, in the plural, “any matter relating to [particular] claims or actions”, as referring to a function, but, to my mind, it would be an unusual method of expression.
If the words, “any matter relating to a claim or action under Part 4 of the [MVA]” are understood as a composite expression, it seems more apt to regard the expression as referring to a “class of information”, rather than to a function or functions. Ordinarily, if one wished to refer to a function relating to the conduct of a claim or action, the word “matter” would not be used. If Parliament had intended that MAC’s activities generally in relation to the provision of compulsory third party insurance, or in relation to the consideration and determination of claims in respect of death or injury arising from the use of a motor vehicle, should be excluded from scrutiny under the FOI Act, it is reasonable to suppose that it may have used more apt language for that purpose. It may, for example, have used a generic term descriptive of MAC’s function, such as “the administration of the compulsory third party insurance scheme” or “the management and resolution of claims and actions under Pt 4”, or some similar expression.
Paragraph (o) in Sch 2 provides a ready example of this manner of expression. It exempts as an agency a Minister of the Crown in respect of “the administration” of two funds. Paragraph (i) is another example. It exempts the Attorney‑General in respect of functions relating to “the enforcement of the criminal law”.[30] These paragraphs indicate that when the Parliament intended that an agency should be excluded with respect to a particular activity, it used a noun which was descriptive of the activity in question. The language of par (f) is quite different in this respect. The force of this consideration is, however, weakened by the fact that when, in other paragraphs, Schedule 2 exempts agencies by reference to a class of information, it uses the word “information”.
[30] See also par (m) which exempts “the Public Trustee” in respect of functions exercised as executor, administrator or trustee.
It is also pertinent that “matter” is used in several other provisions in the FOI Act. Although not always used with a consistent meaning, it is difficult to find any usage of the word in the sense of “function”. This militates against the word having the meaning of “function” when used in par (f) of Sch 2.
As to context, the provisions in the FOI Act concerning its objects and the principles for its interpretation are pertinent. Section 3 states the objects of the FOI Act:
(1)The objects of this Act are, consistently with the principle of the Executive Government's responsibility to Parliament—
(a)     to promote openness in government and accountability of Ministers of the Crown and other government agencies and thereby to enhance respect for the law and further the good government of the State; and
(b)     to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies.
(2)     The means by which it is intended to achieve these objects are as follows:
(a)     ensuring that information concerning the operations of government (including, in particular, information concerning the rules and practices followed by government in its dealings with members of the public) is readily available to members of the public and to Members of Parliament; and
(b)     conferring on each member of the public and on Members of Parliament a legally enforceable right to be given access to documents held by government, subject only to such restrictions as are consistent with the public interest (including maintenance of the effective conduct of public affairs through the free and frank expression of opinions) and the preservation of personal privacy; and
(c)     enabling each member of the public to apply for the amendment of such government records concerning his or her personal affairs as are incomplete, incorrect, out-of-date or misleading.
(3)Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records otherwise than under this Act if it is proper and reasonable to do so or if it is permitted or required by or under any other Act or law.
It can be seen that the objects of the Act include the promotion of openness in government, and the accountability of government agencies with a view to enhancing respect for the law and furtherance of the good government of the State. In addition, a stated object of the FOI Act is to facilitate more effective participation by members of the public in the processes involved in the making and administration of laws and policies. The public are entitled to access documents subject only to such restrictions as are consistent with the public interest and the preservation of personal privacy.
Section 3A(1)(a) contains a statement of the Parliamentary intention that the FOI Act “should be interpreted and applied so as to further the objects of [the FOI Act]”.
Construing the word “matter” as referring to a function would give the exemption in par (f) a very wide ambit. MAC would then be an exempt agency in respect of any of its functions relating to claims or actions under Pt 4 (in the sense of that expression on which I am proceeding). This would seem to include a significant part of MAC’s present functions, as specified in s 14(1) of the Motor Accident Commission Act 1992 (SA), which provides:
(1)     The functions of the Commission are—
(a) to provide policies of compulsory third party insurance under Part 4 of the Motor Vehicles Act 1959, and to be the sole approved insurer under that Part until such time as the Minister responsible for the administration of that Act forms the view that it would be in the best interests of the State to invite and approve other persons or bodies of persons to be insurers under that Part;
(b)     to maintain the Compulsory Third Party Fund;
(c) to perform the functions of the nominal defendant while the Commission holds that office under Part 4 of the Motor Vehicles Act 1959;
(d)     to provide financial or other support for and promote programs designed to reduce the incidence or impact of road accidents and road accident injuries;
(e)     to carry on any other residual insurance business arising from its earlier operations as the State Government Insurance Commission (but only in order to wind up that business);
(f)    to perform any functions of a kind prescribed by regulation;
(g)     to perform any functions that are necessary or convenient for or incidental to the performance of functions referred to above.
The functions specified in sub‑pars (a), (b) and (c) seem to comprise the greater part of MAC’s functions and yet each may, at least in some senses, be a function relating to claims or actions under Pt 4 of the MVA. Obviously some closer analysis would be required before a concluded view could be reached in that respect. The provision of support for road safety campaigns and treatment programs (sub‑par (d)) and the carrying on of the residual insurance business of the former SGIC (sub‑par (e)) would seem to be lesser functions.

Given the objects of the FOI Act, one would not readily suppose that the legislature intended that MAC be exempted in relation to such a wide class of functions: it is more reasonable to suppose that the exemption relates to some specific and discrete function, leaving MAC subject to the FOI Act in relation to significant parts of its operations.
There is another feature of context which is important. Even if MAC was not an exempt agency in any respect, that would not necessarily mean that all of its documents would be available for public access. Section 20(1)(a) of the FOI Act provides that an agency may refuse access to a document if it is an “exempt” document. Schedule 1 to the FOI Act establishes some 20 classes of exempt documents. Paragraph (f) may therefore be construed on the basis that there are other mechanisms in the FOI Act which would relieve MAC from disclosing documents which ought reasonably to be regarded as confidential.
As to purpose, it is evident that the intention of the 2001 Amendment was that MAC, unlike SGIC, should be exempt only in part from the provisions of the FOI Act, but that circumstance, by itself, says nothing about the extent of the exemption.
The Bill for the 2001 Amendment was introduced into the Legislative Council by the Minister for Disability Services on 25 July 2001. His Second Reading Speech does not assist presently, because, at that time, the Bill contemplated that MAC would be an exempt agency entirely. However, during the debate on the Bill in Committee in the Legislative Council, the Minister moved an amendment which led to par (f) being enacted in its present form. The Minister said by way of explanation of the amendment:
The effect of this amendment is that the Motor Accident Commission would be an exempt agency, but only in relation to claims or actions under Part 4 of the Motor Vehicles Act, those documents presumably ordinarily being accessed through the ordinary process of discovery rather than by means of a freedom of information application. The commercial operations of the Motor Accident Commission would not be subject to freedom of information.[31]
Later, the Minister said:
If we had simply carried over from the SGIC to the Motor Accident Commission we would have been creating too wide an exemption.[32]
[31] South Australia, Parliamentary Debates, Legislative Council, 27 November 2001at 2778.
[32] South Australia, Parliamentary Debates, Legislative Council, 27 November 2001at 2779.
Although these statements were made by the Minister at the Committee stage, I consider that they form part of the extrinsic materials to which this Court may have regard. It is true that ordinarily this Court has regard only to the relevant Minister’s Second Reading Speech and not to the statements of individual members during debate on a Bill in order to ascertain the purpose or intention of an enactment.[33] However the underlying principle upon which the Court acts would permit it to have regard to a Minister’s statement of explanation of an amendment even if it is made in the Committee stage. That principle is that resort may be had to extrinsic material, including the relevant content of the Parliamentary debates, for the purpose of showing the mischief which the statute is designed to remedy or purpose sought to be achieved.[34]
[33] Owen v South Australia (1996) 66 SASR 251 at 255-6; K‑Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [50]-[53], (2009) 237 CLR 501 at 521-2.
[34] Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 373-4.
In the present case, the relevant statement of purpose is that of the Minister when introducing his amendment to the Government’s own Bill. The happenstance that that occurred in the Committee stage, rather than in the Second Reading Speech is, to my mind, immaterial.
The first sentence of the Minister’s explanation indicates the intention to exempt MAC as an agency only in relation to “claims or actions under Part 4 of the [MVA]”. The rationale given by the Minister was that access to “documents” in relation to claims or actions under Pt 4 should be controlled by court rules relating to discovery of documents, and not by an FOI request. The Minister may be taken to have been referring, in that context, to individual claims and actions, as they are the usual form of proceedings in which court rules relating to discovery (now disclosure) of documents will be enlivened.
To my mind, this is strongly suggestive that the word “matter” is used in par (f) in the sense of “material” and contraindicates its use in the sense of “function”. It also suggests that the exemption is in respect of a quite confined class of information.
As already mentioned, it was not necessary in 2001 for the Minister to be alert to the distinction between functions and classes of information, but his explanation is much more consistent with an intention that the word “matter” have the connotation of information, rather than that of function.
In his statement of explanation, the Minister also noted that the commercial operations of MAC would not be subject to FOI requests. Presumably the Minster contemplated that documents containing information concerning the commercial operations of MAC may be “exempt documents” to which the FOI Act does not entitle access.[35]
[35] Freedom of Information Act 1991 (SA), s 20(1)(a) and Sch 1.
Construing the word “matter” in par (f) as having the sense of “material” or “information” would seem to make the operation of the exemption practical and workable. Essentially, MAC is exempt in relation to the documents relating to particular claims or actions under Pt 4 of the MVA (in the sense explained earlier). MAC should be able to identify documents of that kind readily.
However, if “matter” is understood as a reference to “function” there is much more scope for value judgment as to whether a particular function of MAC does relate, in the manner contemplated by par (f), to claims or actions under Pt 4 of the MVA. There may be different views, reasonably held, as to the scope of the function to which reference is made. It is also well recognised that the precise content of the expression “relating to” varies according to the context in which it is used.[36] There is often considerable scope for reasonable minds to differ as to the nature and extent of the relationship between the two matters contemplated by the expression. A construction which avoids these uncertainties as to the requisite degree of relationship between an identified function of MAC, on the one hand, and particular information or a particular document, on the other, is to be preferred.
[36] See, for example, Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1960) 105 CLR 602 at 620-1; Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 at 653; Technical Products Pty Ltd v State Government Insurance Office (1989) 167 CLR 45 at 47; Australian Securities and Investments Commission v Citrofresh International Ltd [2007] FCA 1873 at [66]-[71], (2007) 164 FCR 333 at 347-9; Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33 at [25], (2010) 241 CLR 510 at 519-520.
In my opinion, these matters point in favour of par (f) being understood as exempting MAC as an agency in respect of any information relating to a particular claim or action, or relating to particular claims or actions, under Pt 4 of the MVA. For the reasons given earlier, I proceed on the basis that such claims or actions are not confined to those derived from Pt 4 of the MVA itself, but include claims to which the compulsory policy of third party insurance may respond.
Construction of par (f) in this way is contrary to the conclusion of the Judge at first instance. Accordingly, before determining whether effect should be given to my view, it is appropriate to consider the Judge’s reasons more closely.
I agree with the Judge that s 26(b) of the Acts Interpretation Act 1915 (SA) has the effect that the singular “claim or action” in par (f) includes “claims or actions”. However, this does not mean that the legislature’s use of the singular indefinite article is immaterial. On the contrary, it suggests that the legislature was not intending to exempt MAC in respect of claims and actions generally.
For the reasons given earlier, the notion that MAC should be exempt as an agency in respect of a function in relation to a particular claim or action does not seem plausible. That is particularly so given that much of the information obtained by MAC in relation to particular claims is protected from coerced production quite independently of the FOI Act. For example, s 124(7) of the MVA makes privileged from production or disclosure in certain circumstances the notice and information required to be given to the approved insurer by the owner, person in charge and driver of a vehicle involved in an accident which causes bodily injury. Accordingly, there was no need for MAC to be given additional immunity by the FOI Act in relation to such documents or information.
I also agree with the Judge that the use in par (f) of the phrase “in respect of” is some indication that “matter” is used in the sense of function, as that is the phrase used elsewhere in Sch 2 when an exemption is granted in relation to a function. However, I consider that this is of slight value only. As Pearce and Geddes note in Statutory Interpretation in Australia,[37] the two expressions are often used interchangeably. This means that the legislature may not have intended any difference in meaning or to indicate some different purpose. In any event, par (f) was a later addition to Sch 2 and one cannot be confident that consistency in drafting style was a prominent consideration at the time of its insertion. This is especially so given that it was unnecessary at the time of the amendment for the Minister to advert to the distinction between functions and classes of information. Finally, I note that the definition of exempt agency in s 4(1) of the FOI Act uses the phrase “in respect of” in reference to both functions and classes of information, which rather suggests that the difference between the two expressions may not have been regarded as material.
[37] DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011) at 375-7.
The Judge considered that the appellant’s contention involved construing par (f) as though it read simply “in respect of any claim or action under Part 4 of the [MVA]”. He said that such a construction did not give effect to the principle that all words in a provision should be given meaning and effect.[38] I respectfully disagree with the Judge in this respect. The construction outlined earlier does give effect to all the words in par (f) by indicating that MAC is exempt in relation to a class of information, that class being any information relating to a particular claim or action or relating to particular claims or actions.
[38] Moloney v Motor Accident Commission [2012] SASC 170 at [19], referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [71]; (1998) 194 CLR 355 at 382.
The Judge considered that par (f) was intended to exempt MAC as an agency to the same extent as SGIC had been exempted previously. It is apparent that, in reaching that view, the Judge considered that the “mandate” of MAC as contained in s 14(1) of the Motor Accident Commission Act 1992 (SA) is broader than that of the former SGIC and that Parliament had intended, in effect, that MAC should not be exempt in relation to those functions which extended beyond those of SGIC.[39]
[39] Moloney v Motor Accident Commission [2012] SASC 170 at [20]-[22].
With respect, the Judge was incorrect in understanding that MAC’s present functions are broader than was the case when it was known as SGIC. That is because the latter was authorised by s 12(1) of the State Government Insurance Commission Act 1970 (SA), amongst other things, to undertake business as a general insurer offering any recognised class or form of insurance. MAC, on the other hand, is confined to compulsory third party insurance and, in respect of general insurance, may carry it on only for the purpose of winding up SGIC’s previous business.
Perhaps more fundamentally, there does not appear to have been any significant difference in 2001, at the time that the 2001 Amendment was enacted, between the former functions of SGIC and the then current functions of MAC.
It is also evident that the legislature took the view that a grant of a general exemption to MAC, as had formerly been the case in respect of SGIC, would be excessive, bearing in mind the greater emphasis on the public interest in having access to information held by the government and government agencies evident in the 2001 Amendment.[40]
[40] South Australia, Parliamentary Debates, Legislative Council, 25 July 2001 at 2060.
Finally, the Judge considered that the appellant’s proposed construction of par (f) produced artificiality. He considered that a construction of the paragraph which would mean that access could be gained to general directions concerning the management and conduct of a third party claim but not the same directions given in relation to a specific claim or action was artificial. Again, with respect, I differ. I consider it quite understandable that the legislature would have distinguished, in freedom of information legislation, between policies and directions of general application, on the one hand, and information and directions with respect to the conduct and management of a particular claim or action, on the other. Disclosure of the former does not impinge on the privacy of individuals, whereas the latter may well do so.
Conclusion
For the reasons given above, I consider that par (f) in Sch 2 should be construed as rendering MAC an exempt agency in respect of any information relating to a particular claim or action, or relating to particular claims or actions under Pt 4 of the MVA. The expression “under Part 4 of the [MVA]” should, for this purpose, be understood in the manner on which I have proceeded for the purpose of these reasons. Although this conclusion is different from that reached by the Judge, I consider with respect that the reasons advanced by him do not warrant the alternative construction.
There is, however, a question as to the form of relief to which the appellant is entitled in the light of this conclusion. I mentioned earlier the difficulty arising from the absence of agreement by the parties as to how their respective constructions of par (f), if accepted, were to be applied in relation to the requested documents, and from their omission to present evidence on that topic. It is not possible in that circumstance for this Court to conclude that MAC is not an exempt agency in respect of the requested documents. That being so it is not appropriate for this Court to order that MAC “determine” the appellant’s application as contemplated by s 19(1) of the FOI Act, as that would involve a conclusion that MAC is an agency to which that provision applies.
As I said earlier, if MAC is not such an agency, then s 19(1) does not require it to “determine” the application, although given ordinary considerations of good administration and courtesy, one would not expect MAC to ignore it. A remedy in the nature of mandamus is available only if the defendant is subject to a duty to perform the act in question.[41]
[41] Construction Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2007] FCAFC 32 at [5], [75]; (2007) 157 FCR 267 at 263, 282.
In these circumstances, I do not think that this Court can do any more than to declare that par (f) in Sch 2 of the FOI Act renders MAC an exempt agency in respect of any information relating to a particular claim or action under Pt 4 of the MVA. However, before making a declaration to this effect, I would hear from the parties as a declaration in these terms was not the subject of any submissions.
Accordingly, I would allow the appeal, set aside the order dismissing the application for judicial review and, in its place, and subject to hearing from the parties, make a declaration that par (f) in Sch 2 of the FOI Act renders MAC an exempt agency in respect of any information relating to a particular claim or action under Pt 4 of the MVA.
STANLEY J: I would allow the appeal.
By s 4(1) of the Freedom of Information Act 1991 (SA) (the Act) an “exempt agency” is defined to mean, inter alia, a person or body referred to in Schedule 2, or a person or body referred to in that schedule in respect of functions or classes of information specified in that schedule. The Motor Accident Commission is listed as an exempt agency in Schedule 2(f) of the Act, “in respect of matters relating to a claim or action under Part 4 of the Motor Vehicles Act 1959”.
In my view, the reference to “matters” in Schedule 2(f) of the Act is to be construed as meaning information relating to a claim or action under Part 4 of the Motor Vehicles Act 1959 (SA).
For this purpose, I consider that the expression “a claim or action under Part 4 of the Motor Vehicles Act 1959” refers to a claim made by a person, who has suffered injury arising out of the use of a motor vehicle against the insured specified in the policy or against the nominal defendant. For the reasons given by White J, however, I agree that this construction should not be considered definitive, or to preclude in any later proceeding argument as to its proper construction.
I agree with the reasons of the Chief Justice and White J for construing Schedule 2(f) in this manner. In my view, this construction is consonant with the injunction found in s 3 of the Act. Construing “matter” to mean information rather than function is more likely to ensure that information concerning the operations of the MAC is readily available to members of the public, and confers on members of the public a legally enforceable right to be given access to documents held by the MAC, subject only to such restrictions that are consistent with the public interest and the preservation of personal privacy.
For the reasons given by White J, I would set aside the order dismissing the application for judicial review and, subject to hearing from the parties, make a declaration that the MAC is an exempt agency in respect of any information relating to a claim or action under Part 4 of the Motor Vehicles Act 1959 (SA).

[2013] SASCFC 58

27 June 2013

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