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Re Denehy and Superannuation Complaints Tribunal

Re Denehy and Superannuation Complaints Tribunal

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Case Copied 10 September 2012 76 min read

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CATCHWORDS – FREEDOM OF INFORMATION - request to Superannuation Complaints Tribunal for documents obtained from superannuation fund and its trustee in course of review of complaint - exemptions claimed - unreasonable disclosure of personal information – legal professional privilege – unreasonable disclosure of business affairs – whether document can be released with appropriate deletions of irrelevant or exempt material – decision varied.

CATCHWORDS – FREEDOM OF INFORMATION – legal professional privilege - whether privilege abrogated by statute - no abrogation – whether production under mistaken belief that required waived privilege – privilege not waived.

CATCHWORDS – FREEDOM OF INFORMATION – context in which information obtained by Superannuation Complaints Tribunal and restrictions on its disclosing information relevant in assessing whether disclosure under FOI Act unreasonable.

CATCHWORDS – FREEDOM OF INFORMATION – statutory regulation of trustee and its statutory obligations to disclose information relevant in assessing whether disclosure under FOI Act unreasonable.

WORDS AND PHRASES – “business affairs”

Acts Interpretation Act 1901, s 2C
Administrative Appeals Tribunal Act 1975, ss 30(1A), 33, 35, 42C
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Corporations Act 2001, ss 761A, 761G, 912A, 1017C
First State Superannuation Act 1992 (NSW), ss 13, Sch 3 and Items 6 and 7, 49
First State Superannuation Legislation Amendment (Conversion) Act 2005, s 3 and Sch 1 and [1.1]
Freedom of Information Act 1982, ss 3, 4, 9, 11, 15, 22, 27, 27A, 41, 42, 43, 54, 55, 61, 91, 92
Freedom of Information Amendment (Reform) Act 2010, s 3 and Sch 3, Part 2, items: 17, 27-29, 39
Superannuation Administration Act 1991 (NSW)
Superannuation Administration Act 1996 (NSW), ss 4, 7, 24, 48 and Part 3, 49 – 51, 64, 128C, Sch 2A
Superannuation (Resolution of Complaints) Act 1993, ss 3, 6, 12, 14, 14A, 14AA, 15A, 15B, 15CA, 15E, 15F, 15H, 15J, 17, 18, 22A, 24, 24A, 25, 30, 31, 32, 33, 34, 35, 36, 37, 44, 60, 62, 63, 64, 64A, 65
Superannuation Industry (Supervision) Act 1992, ss 10, 29PD, 52, 101, 107, 108
Superannuation Legislation Further Amendment Act 1998 (NSW)

Corporations Regulations 2001, r 7.6.02
Superannuation Industry (Supervision) Regulations 1994, rr 4.01

First State Superannuation Rules, rr 1.11, 2.2, 3.3, 15.1, 16.1, 16.2, 16.4, 17.2, 23.1

Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31
Attorney-General’s Department v Cockcroft (1986) 64 ALR 97
Australian Wheat Board v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30; 234 ALR 651
AWB Ltd v Cole [2006] FCA 571; (2006) 232 ALR 743; 91 ALD 741
AWB Limited v Honourable Terence Rhoderic Hudson Cole [2006] FCA 571; (2006) 152 FCR 382; 232 ALR 743; 91 ALD 46
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52; 49 ALR 385; 57 ALJR 749; 83 ATC 4606; 14 ATR 713
Bennett v Chief Executive Officer of the Australian Customs Service [2003] FCA 5
Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] AATA 608
Decision Date: 10 September 2012

CaseChat Overview and Summary

The case before the court involved a request for documents under the Freedom of Information Act made to the Superannuation Complaints Tribunal. The applicant sought documents obtained by the Tribunal from a superannuation fund and its trustee during a review of a complaint. The Tribunal had claimed exemptions to prevent disclosure of the documents, citing unreasonable disclosure of personal information, legal professional privilege, and unreasonable disclosure of business affairs. The applicant sought to have the decision of the Tribunal varied to allow the release of the documents with deletions of any irrelevant or exempt material.

The legal issues before the court were whether the exemptions claimed by the Tribunal were valid, whether legal professional privilege was abrogated by statute, whether the privilege was waived, and whether the disclosure of the documents under the FOI Act would be unreasonable. The court examined the nature of the information sought, the context in which it was obtained, and the restrictions on the Tribunal's disclosure of the information. The court also considered the statutory obligations of the trustee to disclose information and the relevance of this to the assessment of whether disclosure under the FOI Act would be unreasonable.

The court found that the Tribunal's decision was flawed and varied it to allow the release of the documents with deletions of any irrelevant or exempt material. The court held that the exemption based on unreasonable disclosure of personal information was not valid, as the documents contained only limited personal information. The court also found that legal professional privilege was not abrogated by statute and that the privilege was not waived. The court held that the disclosure of the documents under the FOI Act would not be unreasonable, given the context in which the information was obtained and the restrictions on the Tribunal's disclosure of the information. The court further held that the statutory obligations of the trustee to disclose information were relevant in assessing whether disclosure under the FOI Act would be unreasonable.

The final orders of the court were that the decision of the Superannuation Complaints Tribunal be varied to allow the release of the documents with deletions of any irrelevant or exempt material. The court also ordered that the applicant be reimbursed for the costs of the application.

Orders