Moloney v Motor Accident Commission - [2012] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
MOLONEY v MOTOR ACCIDENT COMMISSION
[2012] SASC 170
Judgment of The Honourable Justice Gray
27 September 2012
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 plaintiff sought an order of mandamus compelling the defendant, the Motor Accident Commission, to determine an application made by the plaintiff pursuant to section 13 of the Freedom of Information Act 1991 (SA) - the defendant refused to comply with this application, indicating that it considered itself to be an “exempt agency” within the definition of the Freedom of Information Act, and that the plaintiff’s application was therefore not an application pursuant to section 13 of the Act - whether the defendant is an "exempt agency" within the definition of the Freedom of Information Act.
Held: Application for judicial review dismissed - the defendant is an exempt agency for the purposes of the Freedom of Information Act in relation to the plaintiff’s application under section 13 of that Act - the documents sought by the plaintiff 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 defendant was under no obligation to determine the plaintiff’s application.
Freedom of Information Act 1991 (SA) s 4, s 12, s 13, Sch 2 and Sch 2(f); Motor Vehicles Act 1959 (SA) Pt 4; Acts Interpretation Act 1915 (SA) s 26(b); Freedom of Information (Miscellaneous) Amendment Act 2001 (SA) s 35(b), referred to.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; K-Generation v Liquor Licensing Court (2009) 237 CLR 501, considered.

MOLONEY v MOTOR ACCIDENT COMMISSION
[2012] SASC 170
Civil
GRAY J.

This is an application for judicial review.
The plaintiff, Peter Nicholas Moloney, seeks an order of mandamus compelling the defendant, the Motor Accident Commission, to determine an application made by the plaintiff pursuant to section 13 of the Freedom of Information Act 1991 (SA).
The evidence in this application comprised affidavits of the plaintiff sworn on 29 September and 10 November 2011, and of Andrew William Daniels, the Chief Executive Officer of the defendant, sworn on 20 December 2011. The facts are not in dispute.
Background
The plaintiff is a legal practitioner and principal of a law firm based in South Australia. A substantial part of the firm’s work involves the representation of plaintiffs in motor vehicle accident personal injury claims. The plaintiff is also a member of the Committee of the South Australian Branch of the Australian Lawyers Alliance, an organisation that promotes the interests of plaintiffs.
The defendant is the sole approved provider of compulsory third party insurance in relation to registered motor vehicles in South Australia. When a person is injured in a road accident resulting from the fault of a road user insured by the defendant, the injured person may make a claim to the defendant for compensation pursuant to Part 4 of the Motor Vehicles Act 1959 (SA). The defendant also acts as the nominal defendant in personal injury claims relating to road accidents caused by unidentified or uninsured motor vehicles.
From time to time persons making third party claims under Part 4 of the Motor Vehicles Act apply to South Australia Police for a vehicle collision report. Claimants are typically provided with censored copies of these reports, with the names and addresses of any witnesses to the relevant accident redacted. By contrast, Allianz Australia Insurance Limited, the company which has been contracted by the Motor Accident Commission to manage compulsory third party and nominal defendant claims, is usually supplied with uncensored copies of these reports. The plaintiff submitted that this practice causes plaintiffs in compulsory third party claims to be placed at a disadvantage as against the Motor Accident Commission.
On 28 February 2011, the plaintiff submitted an application to the defendant pursuant to section 13 of the Freedom of Information Act, which relevantly provides:
An application for access to an agency’s document—
(a)must be in writing; and
(b)must specify that it is made under this Act; and
(c)must be accompanied by such application fee as may be prescribed; and
(d)must contain such information as is reasonably necessary to enable the document to be identified; and
(e)must specify an address in Australia to which notices under this Act should be sent; and
(f)must be lodged at an office of the agency, and may request that access to the document be given in a particular way.
The plaintiff seeks access to three classes of documents said to be within the defendant’s possession, namely:
-Any Motor Accident Commission policies and/or directions to Allianz South Australia – Compulsory Third Party regarding:
othe conduct of investigations following motor vehicle accidents;
oprotocols on treatment of persons injured in motor vehicle accidents;
oobtaining Police (Vehicle Collision) Reports of motor vehicle accidents and the distribution of copies thereof.
-Any agreement or understanding or protocols with South Australia Police regarding the provision of and/or distribution of Police (Vehicle Collision) Reports and regarding any censorship or editing of them by South Australia Police for any purpose.
-Any agreement, arrangement, retainer, understanding or protocol with the Corporate Health Group and/or Dr John Wyatt.
The defendant refused to comply with this application, indicating that it considered itself to be an “exempt agency” within the definition of Schedule 2 of the Freedom of Information Act. This refusal inferred that the plaintiff’s application was therefore not an application pursuant to section 13 of the Act.
Freedom of Information Act
Section 12 of the Freedom of Information Act confers on persons “a legally enforceable right to be given access to an agency’s documents in accordance with this Act”. It is not in dispute that the documents sought by the plaintiff are documents for the purposes of the Act.[1] The issue before this Court turns on whether, in relation to the plaintiff’s application, the Motor Accident Commission is an “agency” within the meaning of the Act.
[1] Freedom of Information Act 1991 (SA) section 4(1) (definition of “document”).
Section 4(1) defines “agency” to not include an “exempt agency” and provides that an “exempt agency” relevantly includes “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”.[2] Schedule 2 relevantly provides:
The following are exempt agencies:
…
(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;
…
[2] Freedom of Information Act 1991 (SA) section 4(1) (definition of “exempt agency” para (b)).
In particular, it is the interpretation of “exempt agency” that is in issue in the within proceeding.
The plaintiff submitted that, under the correct interpretation of Schedule 2(f), the defendant is an exempt agency only in respect of matters relating to a particular third party claim or action, as distinct from such claims or actions generally. The plaintiff contended that, while the documents sought by the plaintiff could be said to relate to third party claims in a general sense, they do not relate to any individual third party claim or action. The plaintiff therefore argued that the defendant is not an exempt agency in respect of the plaintiff’s application.
The plaintiff based this interpretation of Schedule 2(f) on the use of the singular indefinite article “a” which precedes the singular nouns “claim or action”. The use of the singular article is not, however, determinative. Section 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”.
The defendant contended that Schedule 2(f) has the effect that the defendant is an exempt agency in respect of documents concerning any business or function of the Motor Accident Commission relating to claims under Part 4 of the Motor Vehicles Act. Under this interpretation, the defendant would be an exempt agency in relation to the documents sought by the plaintiff, as these are general policies and directions concerning the manner in which the defendant handles third party claims.
The Interpretation of Schedule 2(f)
For a number of reasons, I have concluded that the exemption afforded to the defendant under Schedule 2(f) applies in relation to the plaintiff’s application.
The plaintiff’s interpretation of Schedule 2(f) is contradicted by a plain text reading of that provision.
The word “matter” is capable of bearing different meanings depending on the context. For instance, consistent with the plaintiff’s interpretation of Schedule 2(f), the word “matter” may convey a meaning similar to “information”, as in the phrase “the document contained matter”. Equally, and as the defendant submits, “matter” can carry the meaning of “affairs or business”, such as in the phrases “matters of state” or “a personal matter”.
It is this second possible meaning of “matter” that should be accorded to Schedule 2(f). As earlier mentioned, the definition of exempt agency in section 4 of the Freedom of Information Act contemplates that agencies may be exempt “in respect of functions or classes of information specified in [Schedule 2]”. Indeed, there are a number of other agencies listed in Schedule 2 that are exempted by reference to either a particular type of information or to a particular function. Of these other exempt agencies, the phrase “in relation to” is used where the exemption is limited by reference to information, whereas “in respect of” is employed where the exemption is limited by reference to functions. The use of the words “in respect of” preceding “any matter” in Schedule 2(f) would therefore indicate that “matter” bears a meaning more comparable to “function” than to “information”.
The plaintiff’s interpretation of Schedule 2(f) also leaves the word “matter” without work to do. If Parliament merely intended to exempt the defendant in relation to particular third party claims or actions, this result could have been achieved by using the phrase “in respect of any claim or action under Part 4 of the Motor Vehicles Act”. To interpret Schedule 2(f) in the manner suggested by the plaintiff would therefore be contrary to the general principle of statutory interpretation that all words have meaning and effect.[3]
[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ).
An examination of the legislative history of Schedule 2(f) also suggests that the exemption afforded to the defendant by that provision is broader than that suggested by the plaintiff. From 1995 to 2003, the claims management services of the defendant were provided by the State Government Insurance Commission. In the period of 1995 to mid 2002, Schedule 2(g) of the Freedom of Information Act listed the State Government Insurance Commission as an exempt agency for the purposes of that Act. Unlike the present Schedule 2(f), the exemption that previously existed in relation to the State Government Insurance Commission was absolute, and was not limited by reference to matters relating to third party claims or actions.
By amendment commencing on 1 July 2002,[4] Schedule 2(g) was removed and the present Schedule 2(f) inserted. The amending Bill, as it was originally introduced into Parliament, did not qualify the Motor Accident Commission’s exemption by reference to third party claims or actions. The Bill was then amended in the Legislative Council to reflect the current wording of Schedule 2(f). Parliamentary Hansard records that the following remarks were made by the Honourable Robert Lawson in the Legislative Council in relation to the amendment:[5]
I should have mentioned that the amendment to exclude documents relating to claims under the Motor Vehicles Act is in consequence of the remarks made by the Hon. Angus Redford during his second reading contribution. I thank him for drawing our attention to what would have been an excessive exemption. If we had simply carried over from the [State Government Insurance Commission] to the Motor Accident Commission we would have been creating too wide an exemption.
[4] Freedom of Information (Miscellaneous) Amendment Act 2001 (SA) section 35(b).
[5] South Australia, Parliamentary Debates, Legislative Council, 27 November 2001, 2779 (Robert Lawson). In K-Generation v Liquor Licensing Court (2009) 237 CLR 501, 521-2, French CJ considered that extrinsic materials such as Hansard could be used to assist courts in ascertaining legislative intent when interpreting South Australian statutes. The Chief Justice deemed that this was enabled by the common law notwithstanding the absence of any provision of the Acts Interpretation Act 1915 (SA) expressly permitting such reference to extrinsic materials.
This indicates an intention that the exemption of the Motor Accident Commission would be of similar scope to the exemption that previously existed in relation to the State Government Insurance Commission. In this respect, the present wording of Schedule 2(f) is a reflection of the fact that the mandate of the Motor Accident Commission, as set out in section 14(1) of the Motor Accident Commission Act 1992 (SA), is broader than was that of the former State Government Insurance Commission.[6] The Motor Accident Commission performs functions in addition to the provision of compulsory third party insurance, including the conduct of public awareness campaigns targeted at reducing the number and impact of road injuries and deaths. By limiting the defendant’s exemption by reference to “any matter relating to a claim or action under Part 4 of the Motor Vehicles Act”, it appears that the legislature merely intended to exclude from the ambit of the exemption any functions of the Motor Accident Commission that were not previously performed by the State Government Insurance Commission.
[6] Section 14(1) of the Motor Accident Commission Act 1992 (SA) provides:
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 plaintiff’s constrained interpretation of Schedule 2(f) also produces results that cannot be practically justified. Under the plaintiff’s interpretation, general directions governing how third party claims and actions are to be managed would not be within the ambit of the Schedule 2(f) exclusion. Yet if the same directions were given in relation to a specific third party claim or action, then the defendant would be an exempt agency. It is unlikely that Parliament intended that the answer to the question of whether or not the defendant is an agency under the Freedom of Information Act would be contingent on this manner.
Conclusion
It follows from this interpretation of Schedule 2(f) that the defendant is an exempt agency for the purposes of the Freedom of Information Act in relation to the plaintiff’s application under section 13 of that Act. The documents sought by the plaintiff are 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. Accordingly, the defendant is under no obligation to determine the plaintiff’s application.
The application for judicial review is dismissed.