Re Matthews and Australian Securities and Investments Commission and Anors - [2014] AATA 769

[2014] AATA 769

Division  GENERAL ADMINISTRATIVE DIVISION
File Number                   2006/0557
Re  William Matthews
APPLICANT

And Australian Securities and Investments Commission
RESPONDENT

And Newmont Australia Ltd
PARTY JOINED

And Michael Ryan
PARTY JOINED

And Jeffrey Knapp
PARTY JOINED

DECISION
Tribunal  Deputy President S A Forgie
Date  24 October 2014
Place  Melbourne
The Tribunal decides that:
(1)in relation to documents containing passages found to be exempt when appearing in other documents considered in decision [2010] AATA 649:
(a)In so far as it contains the following passages, Document 308 is exempt from disclosure under:
(i) s 37(1)(b) of the Freedom of Information Act 1982 (FOI Act):
A.the passage on page two beginning with the word “A” in the fourteenth line and ending with the word ‘meeting’ on the seventeenth line; and
B.the passage on page two beginning with the word “Several” in the twenty third line and ending with the word ‘that’ in the thirtieth line.

(ii)ss 36 and 40(1)(d) of the FOI Act:
A.the passage commencing at line 16 on page 2 with the word “MR” and ending with the word “Yes” on the twelfth line page 3.

(b)In so far as it contains the following passage, Document 312 is exempt from disclosure under:
(i)ss 36 and 40(1)(d) of the FOI Act:
A.a handwritten annotation at the top of page 15 beginning “(” and ending immediately before the sentence beginning with the word “The”.

(c)In so far as it contains the following passages, Additional Document 5 is exempt from disclosure under s 42 of the FOI Act:
(i)[12] on page 4, [40]-[46] on page 8 and [47] on page 9.

(d)In so far as it contains the following passages, Additional Document 66 is exempt from disclosure under s 42 of the FOI Act:
(i)[7] on page 4 and [34]-[41] on pages 7-8.

(e)In so far as they contain the following passages, Additional Documents 51 and 54 are exempt from disclosure under s 42 of the FOI Act:
(i)the final three sentences beginning with the word “This” in [7].

(2)in relation to documents considered in decision [2010] AATA 649 and in relation to documents subsequently identified by the respondent as coming within the terms of the applicant’s request:
(a)In so far as it contains the following passages, Document 241 is exempt from disclosure under s 41 of the FOI Act:
(i)the name and contact details following the word “Contact” on page 5, the name and signature at the foot of page 10, all names appearing on pages 11 and 12 other than that of Mr Michael Dwyer, the name and contact details of the contact person on page 19, the name and contact details of the author of a letter on page 27, the name and contact details of the author of a letter on page 31, the name and contact details of the author of an email on page 38, the name and contact details of the contact person shown on a letter on page 39, the name and contact details of the author of an email on page 44, the name of the author of a letter on page 47, the name of the author of a submission on page 52, names and contact details of all persons other than Ms Erica Gray on page 58, the name and contact details following the word “Contact” on page 59 and the name and signature at the foot of page 64.

(b)In so far as it contains the following passages, Document 323 is exempt from disclosure under s 41 of the FOI Act:
(i)the handwritten note written on the side of [62] on page 15.

(c)In so far as it contains the following passages, Additional Document 40 is exempt from disclosure under s 41 of the FOI Act:
(i)the handwritten name and telephone number appearing at the foot of the first page.

(d)In so far as they contain the following passages, Additional Documents 52 and 83 are exempt from disclosure under s 41 of the FOI Act:
(i)Additional Document 52:
the names and contact details appearing at pages 3, 9, 17, 26, 31, 32, 33, 34, 39, 50, 56, 61, 62, 67, 75, 88, 92, 98, 106, 115, 120, 121 and 122; and
(ii)Additional Document 83:
at pages 1, 6, 9, 14, 27, 31, 36, 37, 45, 54, 59, 60, 61, 62 and 68.

(e)In so far as it contains the following passages, Additional Document 53 is exempt from disclosure under s 45 of the FOI Act under:
(i)s 41 of the FOI Act:
A.the name appearing in handwriting immediately below the words “ASIC discussion paper”; and

(ii)s 45 of the FOI Act:
A.the reference to the name of Taylor Woodings and the content immediately preceding that reference on the first page.

(f)In so far as it contains the following passages, Additional Document 65 is exempt from disclosure under s 45 of the FOI Act under s 41 of the FOI Act:
(i)the name appearing in handwriting in the margin immediately to the left of the paragraph numbered “B”.

(g)In so far as it contains the following passages, Additional Document 94 is exempt from disclosure under s 41 of the FOI Act:
(i)the private contact details of Ms Joanna Bird, an ASIC officer.

(h)In so far as they contain the following passages, Document 186 and Additional Document 50 are exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)paragraphs [8]; [16]; [25]; first dot point] and [30]-[34]; and
(ii)Attachments 1 (Application for exemption) and 4 (Extract from Financial Statements).

(i)In so far as it contains the following passages, Additional Document 37 is exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)the whole of the document other than:
A.line 3 on page 5 beginning “Key” and ending “ground” in line 42 on page 6;
B.line 42 on page 8 beginning “What” and ending “2M” in line 45 on the same page;
C.line 43 on page 9 beginning “How” and ending “Nil” in line 51 on the same page;
D.line 11 on page 10 beginning “ASIC” and ending “N/A” in line 21; and
E.line 1 on page 11 beginning “List” and continuing to the end on that page.

(j)In so far as they contain the following passages, Documents 244 and 312B and Additional Document 55 are not exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)Document 244:
A.passage commencing “Unlisted” ending with the word “decision” on page 7; and

(ii)Document 312B:
A.passage commencing after the words “Regulatory Policy Group” ending with the word “relief” on page 14; and
B.passage commencing “Other items” and ending “Noted” on page 14;
C.whole of pages 11 to 13; and

(iii)Additional Document 55:
A.passage commencing “Unlisted” ending with the word “decision” on page 7.

(k)In so far as it contains the following passages, Document 311 is not exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)list of names of applicants for relief under s 340B of the Corporations Act 2001.

(l)In so far as they contain the following passages, Additional Documents 52 and 83 are exempt from disclosure under s 45 of the FOI Act:
(i)Additional Document 52:
A.the whole of pages 44 to 49; and
B.the whole of pages 82 to 87; and

(ii)Additional Document 83:
A.the whole of pages 21 to 26.

(m)In so far as they contain the following passages, Document 258 and Additional Document 6 are exempt from disclosure under s 45 of the FOI Act:
(i)Document 258:
A.the second sentence beginning “It” in line 3 of page 8 on page 8; and
B.the whole of the first paragraph beginning “One” on page 13; and

(ii)Additional Document 6:
A.the second sentence beginning “It” in line 3 of page 7 on page 8; and
B.the whole of the first paragraph beginning “One” on page 12.

(n)In so far as it contains the following passages, Document 260 is exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.

(o)In so far as it contains the following passages, Document 274 is exempt from disclosure under s 45 of the FOI Act:
(i)the fourth sentence in the paragraph numbered “3” on the second page.

(p)In so far as it contains the following passages, Documents 312A and 323 and Additional Documents 61, 81 and 82 are exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.

(q)In so far as it contains the following passages, Additional Document 53 is exempt from disclosure under s 45 of the FOI Act:
(i)the handwritten reference to Taylor Woodings on page 1.

(r)In so far as it contains the following passages, Document 78 is exempt from disclosure under s 45 of the FOI Act:
(i)the whole of pages 12 to 15.

(s)In so far as it contains the following passages, Document 79 is exempt from disclosure under s 45 of the FOI Act:
(i)the last five lines on page 1 of Document 79 and the first 12 lines on page 2.

(t)In so far as it contains the following passages, Additional Document 80 is exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.

(u)In so far as it contains the following passages, Document 258 is exempt from disclosure under s 45 of the FOI Act:
(i)the handwritten note appearing on the page numbered “5” between the end of the first full paragraph and the beginning of the second together with the handwritten note to the left hand side of the first note.

(v)In so far as they contain the following passages, Document 262 and Additional Documents 36 and 58 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning in line 7 of [22A] on page 6 of the attachment (page 7 of the document) to each document immediately after the word “companies).”.

(w)In so far as they contain the following passages, Document 255 and Additional Document 93 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning “As” in the second paragraph of the covering email in each document.

(x)In so far as they contain the following passages, Document 258 and Additional Document 6 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning with the words “In addition” in [25] on page 6 of Document 258 and page 5 of Additional Document 6; and
(ii)the final paragraph on page 12 (page numbered 11) on Document 258 and on page 11 of Additional Document 6 together with the first full paragraph on page 13 (page numbered 12) on Document 258 and on page 11 of Additional Document 6.

(y)In so far as they contain the following passages, Document 261 and Additional Document 76 are exempt from disclosure under s 45 of the FOI Act:
(i)the second full sentence in [22] on page 7 of Document 261 and page 6 of Additional Document 76) and the last sentence of [53] on page 14 of Document 261 and on page 13 of Additional Document 76.

(z)In so far as they contain the following passages, Document 262 and Additional Documents 36 and 58 are exempt from disclosure under s 45 of the FOI Act:
(i)the passage beginning immediately after the word “inclusion.)” in [15] on page 4 and ending immediately before the sentence starting “Our”;
(ii)the first sentence appearing in [22A] on page 7.

(aa)In so far as they contain the following passages, Document 287 and Additional Document 45 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(c)] on substantive page 4 and the third sentence beginning immediately after the word “inclusion.)” in [26] on substantive page 7.

(ab)In so far as it contains the following passages, Document 289 is exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(d)] on page 4 and the first full sentence in [26] at the beginning of page 7 and after the word “inclusion).”.

(ac)In so far as they contain the following passages, Documents 307 and 312 and Additional Documents 61, 62 and 63 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(d)] in each document and the last sentence of [29] immediately following the word “inclusion).”

(ad)In so far as they contain the following passages, Documents 312A, 316 and 323 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(c)] on substantive page 4 and the third sentence beginning immediately after the word “inclusion.)” in [29] on substantive page 78.

(3)In relation to s 22 of the FOI Act, I decide that:
(a)Documents 186 and Additional Documents 10, 37, 44, 50 and 95 are irrelevant to the request made by the applicant and are not accessible under the FOI Act.
(b)in relation to Document 37:
(i)the passage beginning at line 3 on page 5 with the word “Key” and ending at line 39 on page 6 with the word “position” is not irrelevant to the applicant’s request; and
(ii) the remainder of the document is irrelevant to the applicant’s request.

(c) the passages beginning with the word “Agenda” on line 4 at page 2 of Additional Documents 7 and 55 to the end of the page and the whole of pages 5, 6 and 7 are irrelevant to the applicant’s request.
(d)Document 311 is irrelevant to the applicant’s request.
(e)Document 312B is irrelevant to the applicant’s request.
(f)Other than its heading, Additional Document 40 is irrelevant to the applicant’s request.

(4)As it is reasonably practicable to make a copy of each of the documents from which the material I have found to be exempt or irrelevant has been deleted, the respondent is to give the applicant access to the documents identified above but from which the exempt and irrelevant material has been deleted.

…[sgd] S A Forgie….
Deputy President

CATCHWORDS
FREEDOM OF INFORMATION – documents subject of 2010 decision but consideration of personal privacy and business affairs exemptions deferred – further information within documents claimed to be exempt – additional documents located - deletion of information not relevant to the request
FREEDOM OF INFORMATION – PRACTICE AND PROCEDURE - abuse of process – whether Tribunal has power to consider – no power to decide abuse of process – joined party’s claim of delay by ASIC - no abuse of process
FREEDOM OF INFORMATION – personal information – unreasonable disclosure – objective standard –third party consultation undertaken
FREEDOM OF INFORMATION – business affairs – ‘would, or could reasonably be expected’ – ‘unreasonably affect’ – in respect of a person – concerning an organisation or undertaking
FREEDOM OF INFORMATION – protected information under ASIC Act - disclosure of information under FOI considered separately – such disclosure under law of Commonwealth and so permitted under s 127(2) of ASIC Act

FREEDOM OF INFORMATION – breach of confidence – four elements to found action – identify information with specificity – information to have the necessary quality of confidentiality – information to have been received in circumstances to import an obligation of confidence - threatened misuse of information

FREEDOM OF INFORMATION – deletion of exempt matter or irrelevant material – ‘would reasonably be regarded’

LEGISLATION
Acts Interpretation Act 1901; section 2C
Administrative Appeals Tribunal Act 1975; sections 3, 27A, 33, 42A, 42B, 43
Australian Securities and Investments Commission Act 2001; Division 3 of Part 3, sections 11, 12A, 27, 127
Freedom of Information Act 1982; sections 3, 15, 22, 27, 27A, 36, 37, 40, 41, 42, 43, 45, 58, 59
Freedom of Information Amendment Act 1991
Corporations Act 2001; Parts 2G.2, 2M.3, 5.3A; sections 340, 341
Uniform Civil Procedure Rules 2005 (NSW); rule 42.3
CASES
Attorney-General’s Department v Cockcroft (1986) 10 FCR 180; 64 ALR 97
Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1
Corrs Pavey Whiting and Byrne v Collector of Customs of Victoria and Alphapharm Pty Ltd [1987] FCA 266; (1987) 14 FCR 434; 74 ALR 428; 13 ALD 254; 7 AAR 187
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345; 146 ALR 402
Evans v Federal Commissioner of Taxation [1989] FCA 205; (1989) 20 ATR 922
Ferguson v Federal Commissioner of Taxation [1979] FCA 29; (1979) 26 ALR 307; (1979) 79 ATC 4,261; (1979) 9 ATR 873
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34
Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; 116 ALR 567; 31 ALD 417
Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
Re Bartucciotto and Commissioner for Complaints [2006] AATA 36; (2006) 89 ALD 782
Re Callejo and Department of Immigration and Citizenship [2010] AATA 244; (2010) 51 AAR 308
Re Chandra and Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257
Re Corkin and Department of Immigration (1984) 6 ALN N224
Re Kowalski and Repatriation Commission [2014] AATA 141
Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23
Re Matthews and Australian Securities and Investments Commission [2012] AATA 39; (2012) 56 AAR 474; 125 ALD 552
Searle Australia Pty Ltd v Public Interest Advocacy Centre and Another [1992] FCA 241; (1992) 36 FCR 111; 108 ALR 163
State Government Insurance Office v Rees [1979] HCA 52; (1979) 144 CLR 549; 26 ALR 341
The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39
Varawa v Howard Smith Co Ltd [1911] HCA 46; (1911) 13 CLR 35; 17 ALR 499
Wiseman v The Commonwealth [1989] FCA 434
OTHER MATERIALS
Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers
REASONS FOR DECISION

On 12 October 2003, Mr William Matthews made a request under the Freedom of Information Act 1982 (FOI Act). He made his request to the Australian Securities and Investments Commission (ASIC). Initially, his request related to the development of ASIC Instrument CO 02/968 (Class Order)[1] and Policy Statement 174 (PS 174)[2] as well as to ASIC’s investigation into Otter Gold Ltd (Otter Gold), Allstate Explorations NL (Allstate) and Beaconsfield Gold NL (BCD) excluding documents which are publicly available or which have been circulated to creditors and shareholders. Mr Matthews subsequently narrowed the documents he sought to those relating to the Class Order and PS 174.
[1] Class Order CO 02/968 provided for interim relief from financial reporting obligations for companies in external administration. Those obligations were otherwise imposed by the Corporations Act 2001 (Corporations Act). Companies to which it applied were identified by reference to the circumstances in which external administration had commenced or been undertaken. CO 02/968 specified the provisions in respect of which relief was given and the period during which relief was given.
[2] On 5 June 2003, ASIC released an Interim Policy Statement. It was entitled “Interim Policy Statement 174 - Externally administered companies: Financial reporting and AGMs” (IPS 174). It is now known as RG 174 and continues to represent ASIC’s policy regarding the relief that is available under the Corporations Act for externally administered companies in relation to financial reporting obligations under Part 2M.3 and the obligation to hold an Annual General Meeting under Division 8 of Part 2G.2.

I have traced the history of the request, ASIC’s consideration of it and my review of the exemptions previously claimed by ASIC later in these reasons. In summary, ASIC had not articulated its claims for exemption under ss 41 and 43 of the FOI Act and had not undertaken the consultations required by ss 27A and 27. Consequently, I deferred consideration of those claims. In the intervening period, ASIC has identified further documents coming within the terms of Mr Matthews’ request. Claims for exemption of the sort considered in my earlier decision have been made in relation to some passages in those documents. Finally, claims for exemption were not considered in relation to several passages in documents previously identified for the purpose of the previous decision. I will now consider all three groups of claims.

BACKGROUND

Development of Class Order and PS 174

I set out the history of the events relating to both the policy development and the investigation in Annexure F of my first reasons for decision.[3] I will only touch on that history in the broadest outline in this paragraph. The Corporations Act 2001 (Corporations Act) imposes a number of requirements on companies, registered schemes and disclosing entities as well as on their officers, including directors, and others such as auditors. Under s 341, ASIC may make an order in respect of a specified class of companies, registered schemes or disclosing entities, relieving certain persons or entities from certain requirements. The order may be expressed to be subject to conditions and may be either indefinite or limited to a specified period.[4]

[3] Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23; at [246]-[285]; 102-111

[4] Corporations Act, s 341(2)

In late 2001, ASIC understood that there was confusion in the community regarding compliance with the requirements of Part 2M.3 of the Corporations Act regarding annual financial reports and of Part 2G.2 regarding meetings of members of companies when a company was subject to administration under Part 5.3A. Part 5.3A is intended to provide for the business, property and affairs of an insolvent company to be administered in a way that maximises the chances of the company to continue in business or, if that is not possible, results in a better return for the company’s creditors and members than would result from immediate winding up. ASIC had issued Policy Statement 43 – Accounts and audit relief (PS 43) and Policy Statement 44 – Annual general meeting – extension of time (PS 44). Both applied to a company where a receiver had been appointed but neither applied to a company under administration under Part 5.3A. There was no other relevant policy. PS 43 and PS 44 are now known as RG 43 and RG 44 respectively as they are now regarded as regulatory guides rather than as policy statements.

In approximately October 2001, ASIC’s Corporate Finance and Regulatory Policy areas began a joint review of PS 43 to take account of Part 5.3A of the Corporations Act. ASIC regarded the review as raising a number of complex legal issues relating to the interpretation of the Corporations Act. It was initially referred to ASIC’s Regulatory Policy Group (RPG). That group has seven members comprising Commissioners, ASIC executives and representatives from ASIC’s Office of General Counsel. Its role is to consider and settle issues of regulatory policy that fall within the scope of its powers and discretions. Following consideration of the issues by ASIC’s Commissioner’s on 9 July 2002, RPG considered the matter further and, on 5 September 2002, ASIC released a Discussion Paper entitled “Financial reporting and AGM obligations for companies in external administration under Part 5.3A” (Discussion Paper).

In the Discussion Paper, ASIC expressed its view that the appointment of an administrator under Part 5.3A does not remove a company’s obligation to prepare and lodge its financial reports or to hold Annual General Meetings (AGMs). It wanted to remind companies and their administrators of this and also to remind them that it could give relief in certain circumstances. ASIC set out the nature and scope of its powers to grant relief from compliance with the obligations to which it referred. It went on to explore other options that it could adopt in deciding whether to grant relief and called for public comment on those options and the questions and issues it raised in the Discussion Paper. ASIC advised the public that it would use the comments it received in reviewing and amending PS 43 and PS 44 to cover relief of this sort. It also advised that it intended to review those Policy Statements more generally. Comments had to be submitted by 31 October 2002. ASIC advised those thinking of doing so that:
“All submissions will be treated as public documents unless you specifically request that we treat the whole or part of your submission as confidential.”[5]
[5] Exhibit 3 at JDP-3, Discussion Paper at 4

In a Media Release issued on the same day, ASIC announced that it had issued the Class Order giving interim relief during the consultation period.[6] That relief gave certain companies under external administration a moratorium from any forthcoming requirement to prepare and lodge a financial report. That Class Order did not extend to the requirement to hold an AGM. Each would need to apply to ASIC if it wished to extend the time within which it held its AGM. It specified the provisions in respect of which relief was given and the period during which relief was given.[7] ASIC received a number of submissions in response to its call for them in the Media Release and Discussion Paper.
[6] See [1], FN 1
[7] Exhibit 3 at JDP-4

Allstate Explorations NL (Allstate)

Allstate is a listed no-liability mining company which, at the relevant times, wholly owned two subsidiaries: Allstate Prospecting Pty Ltd (APPL) and ACN 070 164 653 Pty Ltd (ACNPL). It was the manager of the Beaconsfield Mine Joint Venture (BMVJ) and, together, APPL and ACNPL owned 51.51% of BMVJ. BMJV is an underground gold mining operation at Beaconsfield in Tasmania. Allstate incurred the majority of the debts incurred by all three companies while the assets were held by APPL and ACNPL. Loans made between companies linked all three companies. On 8 June 2001, Michael Joseph Ryan and Anthony Leslie Woodings of the firm Taylor Woodings were appointed as joint and several administrators of Allstate. I have set out details of the administration in Attachment F to my earlier reasons.[8] On 26 February 2007, Allstate ceased to be in external administration.
[8] [2010] AATA 649; (2010) 118 ALD 23; at [272]-[285]; 108-111

In 2002, a number of members of the public complained to ASIC regarding the administration. As a result of the complaints, ASIC commenced an investigation into the affairs of Allstate and, in particular, into the variation of a Deed of Company Arrangement (DOCA) approved by creditors on 19 March 2002. This was known as the Assignment Investigation. As part of its investigation, ASIC issued notices under Division 3 of Part 3 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) to a number of persons requiring them to produce documents to it. Notices were also issued requiring a number of persons to attend for examination by the officers. Documents were also produced to ASIC on a voluntary basis. The Assignment Investigation was concluded in early 2004. The originals of documents were returned to those who produced them but electronic copies were retained of some of them.

In early 2003, Mr Matthews lodged complaints with ASIC regarding the Allstate gold hedge book and transactions made in that book before the appointment of external administrators in June 2001. This was known as the Hedge Book Investigation and notices were issued to produce documents and attend for examination as before. In early 2004, ASIC decided to take no further action with respect to the investigation.

Mr MATTHEWS’ REQUEST

In his request, Mr Matthews sought:
“1 All documents in ASIC’s possession dated from 1^st January 2001 onwards, excluding documents which are publicly available, regarding the rationale for and implementation of ASIC Instrument CO 02/968 and Policy Statement 174 (PS 174) such as:
a.Reports, proposals, memorandums concerning CO 02/968 and PS 174;
b.Minutes of Meetings where CO 02/968 and PS 174 were discussed etc.
2.All documents in ASIC’s possession regarding its investigations into Otter Gold, Allstate Explorations and Beaconsfield Gold excluding documents which are publicly available or which have been circulated to creditors and shareholders. The ASIC investigations I refer to are as follows:
a.any ASIC investigations into the actions of the external administrators of Allstate, initially referred to in my letter of complaint dated 8 October 2002 to the Australian Shareholders Association which was subsequently referred to ASIC. In particular, actions in relation to the March 2002 creditors meeting and preceding circular to creditors containing the administrators [sic] valuation model
b.any ASIC investigations with respect to the Allstate Explorations and Otter Gold hedge book and published accounts initially referred to in my report to Greg Adams of ASIC dated 14 April 2003.”[9]
[9] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T3 at 122.
Mr Matthews subsequently excluded from his request those documents which are publicly available or which have been circulated to creditors and shareholders. He later narrowed his request so that it encompassed only those documents relating to the Class Order and PS 174.[10]
[10] The terms of Mr Matthews’ request, its amendment and ASIC’s decisions are set out in Annex A to my first decision: Re Matthews and Australian Securities and Investments Commission [2010] AATA 649; (2010) 118 ALD 23 at [130]-[141]; 66-70 (my 2010 decision)

ASIC’s DECISION AND SUBSEQUENT TRIBUNAL REVIEW

Mr Matthews’ concession led to my affirming, by consent, ASIC’s decision in so far as it related to the documents falling outside his narrowed request. That left ASIC’s decisions that certain parts of the remaining documents were exempt under one or other of ss 36, 37(1)(b), 37(2)(b), 40, 42 and 45 of the FOI Act. In my first decision, I reviewed these claims and affirmed the decision in relation to some claims and set some others aside. I did not order that Mr Matthews have access to the documents that I had found not to be exempt as access is subject to the payment of charges. Mr Matthews and ASIC had not resolved that issue.[11]
[11] In Re Matthews and Australian Securities and Investments Commission [2012] AATA 39; (2012) 56 AAR 474; 125 ALD 552, I refused Mr Matthews’ application to extend the time within which to apply for review of ASIC’s decision dated 21 February 2004 relating to charges.

At the time of the first hearing, ASIC had not claimed exemption for any parts of the documents under ss 41 and 43 of the FOI Act. It was agreed, however, that those claims had been put to one side while the other three claims were considered and decided. If the documents were not found to be exempt, ASIC would undertake the necessary consultations under ss 27 and 27A and, if appropriate, claim exemption under either ss 41 or 43. Those claims would be reviewed by the Tribunal. Although separation of the decision-making and review processes in this way is not usual, it was the most appropriate given the volume of documents involved in processing Mr Matthews’ request even in its narrowed form.

In the meantime, ASIC has located further documents coming within Mr Matthews’ request. It had done so following Mr Matthews’ lodging an Additional Statement of Facts and Contentions dated 15 May 2009 (Additional Documents). ASIC has made claims for exemption in relation to parts of those documents which I have also considered.

CONSULTATIONS WITH MR MATTHEWS

In a letter dated 23 July 2013, ASIC sent Mr Matthews a table of the exemptions it claimed under ss 41 and 43 in relation to documents that I had considered in my first decision. It also identified two of those documents, Documents 244 and 312B, as containing material that is irrelevant to the request and that may be deleted under s 22 of the FOI Act.

ASIC also referred to 60 additional documents that it had located. It advised Mr Matthews of these in a letter dated 14 February 2013 but was still in the process of considering whether they were subject to exemptions.

At a directions hearing held on 11 November 2013, Mr Matthews accepted the claims for exemptions made under ss 41-43 in relation to the submission made by Taylor Woodings to the Discussion Paper.

In addition, ASIC referred to five of the documents I had considered in my first decision but not in the context of the exemption provided for by s 45 of the FOI Act. They are Documents 258, 260, 261, 274 and 312. Each, ASIC advised Mr Matthews, contained content from Taylor Woodings’ submission. That was content that I had found in my 2010 decision to be exempt under s 45 when it appeared in other documents. It reserved its rights in relation to this matter, it told Mr Matthews.

MR MATTHEWS’ FURTHER APPLICATION TO THE TRIBUNAL

In its letter, ASIC advised Mr Matthews that he could apply to the Tribunal for review of the claims for exemption that it had set out in the table. Following that advice, Mr Matthews lodged an application with the Tribunal on 19 September 2013. Although it and the accompanying application fee were accepted by the Tribunal at the time, arrangements have been made to refund the application fee and close the file on the basis that ASIC’s letter did not represent a decision reviewable by the Tribunal. What it represented was ASIC’s position on the claims for exemption that remained undetermined after the first decision and its claims with regard to documents that had subsequently been discovered and that came within the scope of Mr Matthews’ request leading to the first decision. These are all matters that are properly considered under the first application that had not been finalised following the first decision.

THE REMAINING ISSUES

The issues in this case fall into four broad categories:
(1)whether the documents, or any parts of them, are exempt under ss 41 or 43 of the FOI Act;
(2)whether, having regard to the exemptions that I accepted in my first decision in relation to the information in particular parts of the documents, other parts of the documents, found to contain the same information, should also be accepted as exempt;
(3)whether exemptions should be found in relation to further documents located by ASIC and relevant to Mr Matthews’ request applying the principles I relied on in my first decision; and
(4)whether ASIC’s claims for exemption should be rejected on the basis that its delay in processing Mr Matthews’ request amounts to an abuse of process.

DOCUMENTS REMAINING UNDER CONSIDERATION

On 2 May 2014, ASIC lodged a Revised Schedule of Claims of Exemptions and a Revised Schedule of Additional Documents covering the documents remaining in contention. They fall into two groups:
(1)Documents that were initially identified as coming within Mr Matthews’ request but in relation to which:
(a)ASIC’s claims for exemption under ss 41 and 43, together with consequential issues arising under s 22, were not considered at the hearing leading to my first decision; and
(b)documents containing passages found to be exempt in other documents in my previous decision:
(i)these are Documents 308 and 312 of the Original Documents; and
(ii)Additional Documents[12] 5, 51, 54 and 66.
(2)Documents subsequently identified by ASIC following information in Mr Matthews’ Supplementary Statement of Facts and Contentions dated 15 May 2009:
(a)these are numbered as Additional Documents (Additional Documents) 1 to 95 and have been lodged with the Tribunal on 30 April 2014;
(b)ASIC has claimed that exemptions under ss 36, 40(1)(d) and 42 apply to the Additional Documents, or parts of them, and also raise issues of relevance arising under s 22.
[12] Documents subsequently identified by ASIC as coming within the scope of Mr Matthews’ request.

Document 308 relates both to the development and implementation of PS 174 and the Class Order and to ASIC’s investigation of Allstate’s affairs.[13] All of the other documents relate only to the former category and not to the investigation.
[13] See [2010] AATA 649; (2010) 118 ALD 23; at [272]-[279]; 108-109

ISSUE: Delay in resolution of the matters arising from request

I permitted Mr Knapp to attend by telephone and to make his submissions at the beginning of the resumed hearing. His submissions were supported by Mr Matthews. Mr Knapp reflected on the history of the matter and submitted that delay attributable to ASIC should be regarded as an abuse of process and their claims rejected on that basis.

I have no doubt that everyone who has been involved in the processing of Mr Matthews’ request and in the review of the decision that was ultimately made by ASIC upon it would regard the process as long and exhausting. It is a matter that has involved a large number of documents and occupied a considerable amount of both Mr Matthews’ time and that of ASIC officers. Mr Knapp has also devoted time to the matter. While I can well understand that Mr Matthews and Mr Knapp have been frustrated by the process and the time that resolution has taken, there also needs to be recognition of the fact that ASIC is no different from any other agency in recent years. Agencies have finite resources to carry out a range of functions and to meet their responsibilities. It is often the case that the burden of fulfilling a particular responsibility will largely fall upon a very small number of officers or even a single officer. Any submission that is made on the basis that the resources of the Commonwealth are extensive has to be viewed against a background of the reality of modern public administration.

Having said that, I understand the frustration felt by Mr Matthews and Mr Knapp. Whether the matter could have been dealt with more quickly if, with the benefit of hindsight, it had been handled differently is debateable and not a debate worth having at this point. Whatever view is taken of the process, though, it does not amount to an abuse of process in any sense understood by the law.

What amounts to an abuse of process?

Although the courts have been reluctant to attempt a definition of the expression “abuse of process”, Isaacs J gave a general description of it in Varawa v Howard Smith Co. Ltd:[14]
“... [T]he term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose. ...”[15]
[14] [1911] HCA 46; (1911) 13 CLR 35
[15] [1911] HCA 46; (1911) 13 CLR 35 at 91

In Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd[16] (Jeffery), the majority of the High Court considered the history of sanctions for abuse of process from Anglo-Saxon times to the modern day. The following propositions can be drawn from their judgment:
[16] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34; French CJ, Gummow, Hayne and Crennan JJ; Heydon J dissenting.
(1)Each court has power over its own processes and to prevent abuse of those processes;[17]
[17] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [27]; 93; 41per French CJ, Gummow, Hayne and Crennan JJ
(a)“ The power of a court to deal with abuse of its process is one aspect of its more general power to control its own process. The exercise of the power to deal with abuse of process ‘is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands’. … Further, the power to stay ‘should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand’. …”.[18]
[18] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [57]; 104-105; 51 (citations omitted) per Heydon J in dissent
(2)“… [C]ourts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of a court, would nevertheless be ‘manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people’. …”.[19]
[19] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [28]; 93; 42
(a)This does not “… mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. …”[20]
[20] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34at [28]; 93-94; 42
(3)“… [C]ertain categories of conduct attracting the intervention of the courts emerged in the nineteenth and twentieth centuries and included …:
‘(a)proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b)proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;
(c)proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d)multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.’”[21]

(4)“The term ‘abuse of process’ … is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in judgments of this Court that the categories of abuse of process are not closed …”.[22]
(a)“… It is clear … that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’ …”.[23]

[21] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [27]; 93; 41 (citation omitted)

[22] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [28]; 93; 41-42 (citation omitted)

[23] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [28]; 94; 42 (citation omitted)

The authorities also show that there must first be an examination of the circumstances to determine the source of any unfairness if, indeed, there be unfairness at all. That unfairness may arise in circumstances affecting only the parties to a particular proceeding but it may go beyond them to third parties. As the majority of the High Court said in CSR Limited v Cigna Insurance Australia Limited:[24]
“ The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion …. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if ‘an estate is being administered … or a petition in bankruptcy has been presented … or winding up proceedings have been commenced … an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets’ … Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation …, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.
…
Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings … no matter where they are brought.”[25]
[24] [1997] HCA 33; (1997) 189 CLR 345; 146 ALR 402 Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Brennan CJ dissenting
[25] [1997] HCA 33; (1997) 189 CLR 345; 146 ALR 402 at 391-392; 433 per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ (citations omitted)

In Jeffery the majority of the High Court found that the circumstances did not give rise to unfairness or unconscionable behaviour that amounted to an abuse of process. They looked carefully at the reasons for there being any apparent unfairness. What was in issue was a funding arrangement that a third party (SST Consulting Pty Ltd (SST)) had entered into with an impecunious plaintiff in commercial proceedings in the Supreme Court of New South Wales. That plaintiff was Rickard Constructions Pty Ltd (RC). SST would fund the litigation and, if RC were successful, would receive, in addition to the costs it had advanced, a share of any amount awarded. It did not provide RC with an indemnity for an adverse costs order should it be unsuccessful in the proceedings. As it turned out, RC was unsuccessful and costs were awarded against it. When RC could not pay all of those costs, the defendant, Jeffery and Katauskas Pty Ltd (JK), applied to the trial judge for an order that SST pay those costs. It did so under r 42.3(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on the ground of abuse of process. That abuse of process was said to arise out of the funding arrangement between SST and RC. It was acknowledged by the parties that the funding arrangement had no bearing on the merits of the proceedings or on the way in which they were conducted. There was no suggestion that RC was a nominal plaintiff or that the proceedings were conducted by or in its name for an improper purpose.

The majority looked beyond the final outcome which was to leave JK with a partially unsatisfied costs order. It looked first to the processes that JK could have taken or, if it had taken them, had done so unsuccessfully to obtain an order for security of costs against RC.[26] The majority said that an impecunious corporate plaintiff may be ordered to provide security where it is shown that it will not be able to meet the defendant’s costs. That does not mean, though, that an impecunious corporate plaintiff will always be ordered to do so.
“… [T]he extent to which that possibility exists and the extent to which there is a resultant ‘unfairness’ to a defendant is a product of the provisions and principles that govern the security for costs. Neither the existence of the possibility nor its scope suggest that there is some more general rule that to prosecute proceedings without reasonable prospects of being able to meet an adverse costs order is an abuse of process. …”[27]
[26] Whether steps were taken or not taken is not clear to me from the judgment.
[27] [2009] HCA 43; (2009) 239 CLR 75; 260 ALR 34 at [39]; 97; 45

In so far as SST was concerned so that an order for costs should be made against it, the majority said:
“ In deciding whether there has been an abuse of process, proper weight must be given to the fact that under the UCPR the general rule is that costs are not to be ordered against a non-party. In deciding whether prosecution of the proceedings was in this case an abuse of process, it is, of course, not sufficient to point to the fact that, but for the engagement of r 42.3(2)(c) of the UCPR, costs cannot be recovered from a non-party. Nor is it sufficient to point to the fact that the plaintiff was and is impecunious. This last fact was relevant to the provision of security for costs.”[28]
[28] [1997] HCA 33; (1997) 189 CLR 345 at [41]; 45

While I acknowledge that this example does not arise in the Tribunal, it illustrates the care that must be taken in analysing the whole of the circumstances before drawing a conclusion that there has been an abuse of process. The remedy that JK sought – payment of the costs order made in its favour on its successful defence of RC’s proceedings – was properly the subject of another process in the court i.e. security for costs. That was the proper forum in which to consider RC’s impecuniosity. RC’s impecuniosity could not found an action for abuse of process.

What is illustrated by the cases to which I have referred is that, when the courts have found there to have been an abuse of process, the usual remedy is by way of a stay of a proceeding instituted by a person or by way of an injunction against the person instituting a proceeding. The courts do not enter judgment against a defendant on the grounds that there has been an abuse of process. A defendant is defending an action brought by another.
Does the Tribunal have power to consider an application for abuse of process?
The Tribunal is a statutory body. Any powers that it has must be found either in the Administrative Appeals Tribunal Act 1975 (AAT Act) or in the enactment conferring power on the Tribunal to review a particular administrative decision.

Section 33 of the AAT Act is an appropriate place to start. It provides that “In a proceeding before the Tribunal … the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal …”.[29] It is clear from s 33 that it is providing for the Tribunal’s powers “in a proceeding” (emphasis added) and that the proceeding is ongoing. It is not giving the Tribunal power to bring a proceeding to an end by, for example, dismissing it. That conclusion is clear from the words of s 33(1) but it is supported by the terms in which the power to regulate proceedings is given to the Tribunal. A reading of ss 33(1) and (2) together shows that the Tribunal is intended to regulate the procedure in a proceeding by way of directions. Section 33(2) prescribes those who may, “For the purposes of subsection (1), [give] directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal …”. Section 33(2A) goes on to give examples of the types of directions that may be given:
“Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.”

[29] AAT Act; s 33(1)(a)

A “proceeding” is defined in s 3(1) of the AAT Act to include various applications, matters and incidental applications. Of particular interest in this case is an application for review of a decision of the sort lodged by Mr Matthews. It is a proceeding within the meaning of paragraph (a) of the definition. If it were thought that one party or another was acting in a way that would, if the Tribunal were a court, be regarded as an abuse of process, it would be open to the Tribunal to use its powers under s 33 to give directions intended to remove that unfairness if it were possible to do so. It could not use those powers to bring the proceeding to an end by dismissing it as a court could if it were to find that proceedings were an abuse of process.

It could not use its powers under s 33 to decide the substantive merits of the application for review. Decision-making powers of that sort arise only under s 43 of the AAT Act and any relevant provisions found in the particular enactment authorising an application for review to be made to the Tribunal in relation to a particular decision. Those powers are given for the purpose of reviewing a decision. They are given so that, at the conclusion of the review, the Tribunal may use the powers and discretions given to the decision-maker by the relevant enactment to make the decision that is correct on the law and on the weight of evidence and, if a discretionary decision, the preferable decision. Those powers have not been given to the Tribunal to regulate the procedures it follows in reviewing a decision or matters of the sort that might constitute an abuse of process were they to arise in a court.

The Tribunal is not without power, though, when confronted with applications that have been brought for purposes that Isaacs J might describe as being other than for the review of the decision or as a mere stalking-horse to coerce a decision-maker in some way that is outside the ambit of the Tribunal’s review of an administrative decision made by that decision-maker. It has power under s 42B of the AAT Act where a proceeding is frivolous or vexatious. Section 42B(1) provides:
“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; and
(b)if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.”

At [88]-[99] of my reasons for decision in Re Kowalski and Repatriation Commission,[30] I set out the principles that arise in considering matters under s 42B(1). I adopt them in this context because they are closely aligned to those that are relevant in the courts when considering whether there has been an abuse of process. What is clear is that the respondent’s actions are not scrutinised when the claim is made that there has been an abuse of process. Rather, it is the actions of those instituting the proceedings that are scrutinised for they are the persons who seek the intervention of a court and call upon its resources to resolve disputes they have with others. The mere fact that their proceedings may have no foundation will not of itself lead to a conclusion that they have been commenced frivolously or vexatiously or in fact is insufficient to justify a finding that it was commenced vexatiously or for an improper cause leading to a conclusion that their institution has amounted to an abuse of process. Those who are defendants or respondents to those proceedings cannot be said to be abusing the process by taking a position that does not accede to the claims made against them.
[30] [2014] AATA 141

The situation is no different in the Tribunal. A decision-maker whose decision is under review cannot be said to be abusing the process of the Tribunal by responding to the application. If it should be that the decision-maker were not to comply with the Tribunal’s directions, the AAT Act does not prescribe a sanction.[31] The only sanction provided in the AAT Act for failure to comply with directions is against an applicant.[32] It is the sanction of the dismissal of the application for review and is a sanction entirely consistent with the approach taken by the courts. Those who seek to avail themselves of the Tribunal’s processes and resources by lodging an application for review must do so within a reasonable time. That is intended to achieve not only some measure of fairness and equity in the availability of the Tribunal’s time and resources to all who come to it but also enables the decision-maker whose decision is under review to devote the resources required of the matter but no more.
[31] There may be a practical sanction in the sense that the decision-maker’s position were not put to the Tribunal and it did not have relevant material brought to its attention.
[32] The sanction is found in s 42A(5) of the AAT Act: “If an applicant for a review of a decision fails within a reasonable time: (a) to proceed with the application; or (b) to comply with a direction by the Tribunal in relation to the application; the Tribunal may dismiss the application without proceeding to review the decision.”

There is no authority to be found in the AAT Act to support the submission put by Mr Matthews and Mr Knapp to the effect that I should “wave away” ASIC’s claims for exemption. I must consider them for, as I will come to at [44] below, s 58(2) of the FOI Act does not permit me to make a decision granting access to a document in so far as it contains exempt matter.

ISSUE: application of exemptions accepted in first decision to same information elsewhere in documents

In my first decision, I found that ASIC had established a number of claims for exemption in relation to passages in particular documents or parts of documents. ASIC has submitted that there are other passages containing the same or similar information. It goes on to submit that those passages should be exempt from disclosure on the same basis as those I considered in my first decision.

I agree that I should consider the claims for exemption made in relation to the two documents that were the subject of my first decision. Whether I missed the references or whether ASIC did not highlight them is irrelevant to the issue. There is no question that they are documents that fall within the terms of Mr Matthews’ request. If, after I examine them, I find that they are exempt on the same basis, I am bound to find that they are exempt and refuse access to the relevant parts of the documents. That follows from the requirement of s 58(2) of the FOI Act that:
“Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.”

A.Documents containing passages found to be exempt in other documents in my 2010 decision

There are only six documents coming within this category. Each contains a passage or passages written in terms identical to those that are to be found in documents that I considered in my 2010 decision and that I have already found to be exempt under the FOI Act.

A.1Document 308

Document 308 is an email written by Mr Shannon McGuire to Ms Sue Hansen. Both are officers of ASIC. The subject of the email was described as “Allstate Explorations NL”. In the email, Mr McGuire has set out a number of question asked of him by Ms Hansen and written a response to each. An unidentified person has made handwritten notes on the email and highlighted certain passages.

The document contains three discrete passages for which ASIC has claimed exemption. They are identical to the passages that I found to be exempt in relation to Document 579. The context in which they appear is also identical. Document 579 is simply a further email in a series of emails between Ms Hansen and Mr McGuire. While Document 308 represents the first in the series, Document 579 represents the second and third. The passages of Document 579 that I found to be exempt appear only in the first of the series and so in Document 308.

In my earlier decision, I found that the first two of the three discrete passages appearing in Document 579 were both exempt under s 37(1)(b).[33] As they appeared in that document, they were:
[33] Decision; paragraph 4(3)
“(i) the passage on page two beginning with the word “A” in the fourteenth line and ending with the word ‘meeting’ on the seventeenth line; and
(ii)the passage on page two beginning with the word “Several” in the twenty third line and ending with the word ‘that’ in the thirtieth line.”

In Document 308, the relevant passages are:
(1)the passage on the first page beginning with the word “A” in the thirty third line and ending with the word ‘meeting’ on the thirty sixth line; and
(2)the passage on the first page beginning with the word “Several” in the forty second line and ending with the word ‘that’ in the first line on the second page.

The evidence remains unchanged. For the reasons I gave at [314]-[318] of my 2010 reasons, I remain satisfied that these two passages are exempt under s 37(1)(b).

I described the third of the discrete passages in Document 579 as “… the passage … commencing with the word ‘MR’ in the fourth line from the bottom on page two and ending with the word ‘Yes’ on the last line of the third page …”. For the reasons I gave at [306]-[312] of my earlier decision, I decided that the passage was exempt under s 36 and affirmed the exemption claimed by ASIC for that passage.[34] I also found that passage to be exempt under s 40(1)(d)[35] for reasons appearing at [321]-[325].
[34] Decision 3(3)
[35] Decision; paragraph 6(3)

That same passage appears at line sixteen on page 2 of Document 308 and ends on the twelfth line on page three. For the same reasons, I am satisfied that it is exempt under ss 36 and 40(1)(d) when it appears in Document 308 as it is when it appears in Document 579.

A.2Document 312

Document 312 is headed “RPG submission”. It contains a number of handwritten annotations and alterations. I have made findings as to its provenance in [203]-[204] of my 2010 decision and will not repeat my reasons for finding that it was a draft of a later submission. Among the handwritten annotations is one at the top of page 15. It refers to an issue raised at an examination conducted under s 19 of the ASIC Act together with the context in which it was raised.

As I have mentioned in relation to Document 308, I found in my earlier decision that material disclosed in examinations conducted under s 19 of the ASIC Act was exempt under ss 36 and 40(1)(d) of the FOI Act. Among others, I did so in relation to Document 579.[36] The substance of the material is different but the reasoning is equally applicable. Therefore, I am satisfied that the handwritten annotation at the top of page 15 of Document 312 beginning “(” and ending immediately before the sentence beginning with the word “The” is exempt under both ss 36 and 40(1)(d).
[36] Decisions 3(3) and 6(3); [294]; 114-115 and [306]-[309]; 119-121 and [325]; 125-126

A.3 Additional Document 5

Additional Document 5 is a document prepared by ASIC officers for Commission Meeting No. 460 held on 9 July 2002. It contains handwritten sidelining on page 6 and annotations on page 8. While some of the detail is differently worded, it appears to be a different version of Documents 137 and 153, which I considered in my earlier decision. I also found in that decision that Document 153 itself is a further draft of Document 36.[37] All of them have similar headings and address similar subject matter.

[37] [418]; 155

In that earlier decision, I found that passages in Document 153 are exempt under s 42 for the same reasons that the same information was presented in a different form in Document 36. Those passages appeared at [12] on page 4, [40]-[46] on page 8 and [47] on page 9 of Document 153. The same information appears in the same paragraphs and on the same pages in Additional Document 5. For the reasons I gave in relation to Document 153, and so those I gave in relation to Document 36, I find that these paragraphs reveal the content of legal advice obtained by ASIC from independent legal advisers. Their inclusion in a document intended for internal circulation does not waive that privilege. Therefore, I find that those passages are exempt under s 42 of the FOI Act.

A.4 Additional Document 66

Additional Document 66 is a document prepared by ASIC officers for Commission Meeting No. 460 held on 9 July 2002. It contains handwritten notations and markings on five of its pages. A comparison with Documents 153 and Additional Document 5 as well as with Document 36 shows that Additional Document 66 contains material that is, in substance if not in its terms, the same as that appearing in those other documents. The material at [7] and [34]-[41] of Additional Document 66 corresponds with that in [12] and [40]-[47] respectively in Document 36 and Additional Document 5. Therefore, for the reasons I gave in relation to those other documents, I find that these paragraphs reveal the content of legal advice obtained by ASIC from independent legal advisers. Their inclusion in a document intended for internal circulation does not waive that privilege. Therefore, I find that those passages are exempt under s 42 of the FOI Act.

A.5Additional Documents 51 and 54

Additional Documents 51 and 54 are copies of an RPG submission prepared for a meeting of the RPG held on 14 August 2002. The submission is entitled “Discussion Paper on financial reporting and AGM obligations of companies in external administration under Pt 5.3A”. Each document has a small amount of handwritten markings indicating that they have been made by two different hands. The typed substance of the documents is identical. ASIC has claimed exemption under s 42 of the FOI Act in respect of the final three sentences of [7] of Additional Documents 51 and 54.

As Mr Hill has submitted, Additional Documents 51 and 54 are versions of Documents 176, 199 and 242. I find that they are identical versions of Documents 176, 199 and 242 in so far as their typed substance is concerned. The only differences lie in their handwritten annotations. Those annotations are not the subject of any exemption claim by ASIC.

In my earlier decision, I found that the final three sentences of [7] and beginning with the word “This” are exempt under s 42. Read in their context in [7], they disclose legal advice that has been sought from an independent legal adviser or advisers. While it appears in a document that has not been prepared for the purpose of obtaining legal advice, the privilege has not been waived for disclosure is confined to the RPG and a handful within ASIC itself. Limited disclosure of that sort is not inconsistent with maintaining its protection under legal professional privilege.[38]

[38] [431] and [434]; 157

As there is no evidence to suggest that legal professional privilege has been waived since I made that decision, the same reasoning leads me to conclude that the same passage in Additional Documents 51 and 54 are exempt under s 42 of the FOI Act. That is the passage comprising the final three sentences of [7] in each document.

ISSUE: claim for exemption under s 41

The s 41 exemption

Section 41(1) of the FOI Act provides:
“A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person).”

If a request for access is made by the person to whom the personal information relates, s 41(1) does not have effect in relation to that information.[39] This qualification to the operation of s 41(1) does not arise in this case.

[39] FOI Act; s 41(2). The remaining provisions of s 41 relate to the provision of access to a document that contains certain personal information relating to the person who has requested it and whose disclosure might be detrimental to the physical or mental health or to the well-being of that person. They are not relevant in this case.

The expression “personal information” is defined in s 4(1) to mean:
“… information or an opinion (including information forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.”
Interpretation of the s 41 exemption

Various authorities have summarised the principles that relate to the interpretation of the expression “personal information” as it is defined in s 4(1). Putting aside the more complex cases in which a document may contain personal information of more than one person and one of those persons is the person making the request, some of the relevant principles are:
(1)The information that is protected from disclosure by s 41 is all information concerning or relating to an individual, and so “about … [a] person”.
(2)“… It would be unwise to substitute for the word ‘personal’ some other word such as ‘private’ because one generally accepted meaning of the word ‘private’ is confidential or not widely known. In my opinion, a person’s personal affairs may be personal to him notwithstanding that they are not secret to him. …”.[40]
[40] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 436; 119; 268; 7 per Lockhart J, with whom Jenkinson and Heerey JJ agreed, when considering the expression “personal affairs”. That was the expression previously used in s 41(1) and defined in s 4(1). The expression was changed to “personal information” by s 29 of the Freedom of Information Amendment Act 1991 but the principle remains equally applicable.
(a)“… Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person’s ‘personal affairs’….”.[41]
[41] Colakovski v Australian Telecommunications Corporation [41] [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 436; 118; 268; 7 per Lockhart J, with whom Jenkinson and Heerey JJ agreed.
(3)The individual must either be named or be an individual whose “… identity is apparent, or can reasonably be ascertained, from the information or opinion.”[42]
[42] Definition of “personal information”: FOI Act, s 4(1)
(a)If this is so when regard is had solely to the information or opinion, the criterion for exemption is met;
(b)It is also met if the identity of the individual is apparent or can reasonably be ascertained by reading the information or opinion in the document with that in the public arena. The information or opinion in the document is no less the source or origin of the identification so that it can still be said that the individual’s “… identity is apparent, or can … be ascertained, from the information or opinion.”
(i)The ease with which publicly available information can be obtained is relevant in determining whether an individual’s identity “can reasonably be ascertained” (emphasis added) and not in determining the base question i.e. whether the individual’s “… identity is apparent, or can … be ascertained, from the information or opinion.”
∙The public information must itself be reasonably available before it can be said that identity can be reasonably ascertained on this basis. Speculation or conjecture that it may be available is not enough.
(ii)The criterion for exemption would not be met if regard must be had to information that is not available to the public.
(iii)The name[43] or signature[44] of a person is personal information about that person.
[43] Re Bartucciotto and Commissioner for Complaints [2006] AATA 36; (2006) 89 ALD 782 at [20]; 786 per Deputy President Hotop
[44] Re Corkin and Department of Immigration (1984) 6 ALN N224 at [11]; N225-N226; The Hon Sir William Prentice, Senior Member
(c)Information that may be regarded as “personal information” may encompass information as to the manner in which contact may be made with that person either in a private capacity (e.g. a residential address and telephone number[45]) or a work or professional capacity (e.g. an email address, direct work or professional telephone or fax numbers[46]).
[45] Jorgensen v Australian Securities and Investments Commission [2004] FCA 143; (2004) 208 ALR 73 at [74]; 88 per Weinberg J
[46] Re Bartucciotto and Commissioner for Complaints [2006] AATA 36; (2006) 89 ALD 782 at [19]; 786 per Deputy President Hotop
(4)“… [W]hether or not disclosure would be ‘unreasonable’ is a question of fact and degree which calls for a balancing of all the legitimate interests involved”.[47]
[47] Wiseman v The Commonwealth [1989] FCA 434; Sheppard, Beaumont and Pincus JJ
(a)The exemption in s 41 is Parliament’s resolution of any inconsistency between the protection of two public interests: the public interest in the disclosure of information held by government and the public interest in protecting the personal privacy of individuals whose information is held by government. The balance between the two is achieved by determining whether the personal privacy of that third party might reasonably be disclosed by granting access under the FOI Act.[48]
[48] Re Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259 per Deputy President Hall and see also the subsequent case of in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at [35]; 438; 121; 270; 9 per Lockhart J
(i)Therefore, s 41 should not be recast in terms of its being a statutory expression of a “public interest in protecting personal privacy”.
(ii)There is no room in s 41 to introduce a public interest test or criterion.
(iii)“… I do not think it is necessary in order to make out the s 41(1) exclusion that there is some particular unfairness, embarrassment or hardship would enure to a person by reason of the disclosure. Such matters, if present, would doubtless weigh in favour of exclusion. But if the information disclosed were of no demonstrable relevance to the affairs of government and likely to do no more than excite or satisfy the curiosity of people about the person whose personal affairs were disclosed, I think disclosure would be unreasonable.”[49]
[49] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 441; 123; 273; 11 per Heerey J
(b)In deciding whether disclosure under the FOI Act is unreasonable, regard must be had to the matters in s 27A(1A) as well as other matters the decision-maker considers relevant:
“… including the nature of the information that would be disclosed, the circumstances in which the information was obtained, the likelihood of the information being information that the person concerned would not wish to have disclosed without consent, and whether the information has any current relevance. Plainly enough what s 41 seeks to do is to provide a ground for preventing unreasonable invasion of the privacy of third parties.”[50]
(i)In practical terms, this means that regard must be had to the consequences of disclosure in the public arena and the effect of those consequences on the individual.
(ii)Except in so far as they affect the individual, the effect of disclosure on persons other than the individual or on activities undertaken in the public or private arena is not a relevant consideration.
(c)What is unreasonable disclosure in terms of s 41(1) must be judged by reference to an objective standard and not by reference to the interests, knowledge or reasons of the person requesting access or by reference to the identity of that person.
(d)“ If documents contain information which could provide valuable evidence or lead to evidence that would be useful or material in establishing the commission of an offence under the law, that is a matter which in my view may be taken into account in determining whether the disclosure of the information would be unreasonable under s 41(1). …”[51]
[50] Re Chandraand Minister for Immigration and Ethnic Affairs [1984] AATA 437; (1984) 6 ALN N257 at [51]-[52]; N259
[51] Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 29 FCR 429; 100 ALR 111; 13 AAR 261; 23 ALD 1 at 437; 120; 269; 8 per Lockhart J

The obligation to consult with third parties

It is apparent from the scope of the issues that must be taken into account that a Minister or agency will not necessarily be the repository of the knowledge required to determine whether or not disclosure of personal information under the FOI Act would be unreasonable. The FOI Act does not permit an agency to grant access to a document containing personal information unless it has first followed the steps regarding consultation set out in s 27A. That section must be read with the relevant exemption in s 41.

Section 27A provides, in part:
“(1AA) This section applies if:
(a)a request is received by an agency or Minister in respect of a document containing personal information about a person (including a person who has died); and
(b)it appears to:
(i)the officer or Minister dealing with the request; or
(ii)a person (the reviewer) reviewing under section 54 a decision refusing the request;
that the person referred to in paragraph (a) or, if that person has died, the legal personal representative of that person, might reasonably wish to contend that the document, so far as it contains that information, is an exempt document under section 41.”

Section 27A(1A) provides for the matters that must be taken into account in deciding whether a person might reasonably wish to contend that a document, in so far as it contains personal information, is an exempt document under s 41.

If a Minister or agency decides that the criteria set out in s 27A(1AA) have been met, then a decision granting access to that personal information must not be made unless the person concerned has been consulted in accordance with s 27A(1):
(1)A decision to grant access under this Act to the document or an edited copy of the document, so far as it contains that information, must not be made unless, where it is reasonably practicable to do so having regard to all the circumstances (including the application of subsections 15(5) and (6)):
(a)the agency or Minister has given to the person or the legal personal representative of the person, as the case may be, a reasonable opportunity of making submissions in support of a contention that the document or edited copy, so far as it contains that information, is an exempt document under section 41; and
(b)the person making the decision has had regard to any submissions so made.”

If, having been consulted, a person makes submissions to the effect that the document is an exempt document under s 41 in so far as it contains certain information, s 27A(2) sets out the procedure to be followed if, after receiving submissions, the agency or Minister decides that the document is not exempt, in whole or in part, under s 41. Section 27A(3) concerns subsequent requests for the document.[52]
[52] “Nothing in paragraph (2)(b) prevents access being given to a document of a kind referred to in that paragraph if a further request has been made for access to the document and there is no failure to comply with this section in dealing with the further request.”: FOI Act; s 27A(3)

ASIC’s consultations

Ms Judith Birch, an ASIC officer, undertook consultations with twelve third parties in accordance with the procedures set out in s 27A(2) as well as in relation to s 27(2), to which I will come shortly. For the moment, I note only that s 27(2) relates to an exemption for business affairs. Ms Birch conducted those consultations in relation to the Original Documents in early 2013. She received a response on 7 March 2013 from a third party (Third Party A) objecting to release of information under s 43. ASIC decided that the information was in the public domain and that it would not claim exemption for it under s 43. It notified Third Party A of its decision in a letter dated 29 April 2014 and advised that party that it could approach the Tribunal should it seek to be made a party to the proceeding.[53]
[53] A copy of ASIC’s letter to Third Party A is not exhibited to Ms Birch’s affidavit. Given the fact that the current proceedings were on foot, it was quite appropriate to advise it that it might apply to be joined as a party to it. The letter may have also advised Third Party A that it was entitled to apply to the Tribunal under s 59 for review of its decision that the document is not exempt under s 43. Section 27A(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) imposes an obligation on a person who makes a decision that is reviewable by the Tribunal to “… take such steps as are reasonable in the circumstances to give to any person whose interests are affected by the decision notice, in writing or otherwise: (a) of the making of the decision; and (b) of the right of the person to have the decision reviewed.” That obligation is qualified by s 27A(2) of the AAT Act but none would seem to apply in the case of a decision made under s 43 of the FOI Act. A failure to notify under s 27A of the AAT Act does not affect the validity of the decision: AAT Act; s 27A(3).

After analysing the Additional Documents, Ms Birch carried out further consultations under ss 27 and 27A. She also wrote to Mr Michael Ryan in the same vein regarding both the Original Documents and Additional Documents. Apart from Air Liquide WA Pty Ltd (ALWA), Ms Birch did not receive any replies.[54]

[54] Affidavit of Ms Birch, sworn on 30 April 2014, Annexure JVB-10; Exhibit 8

Does the exemption under s 41 apply?
A.Document 241

In my earlier decision, I made a number of findings regarding Document 241. I have not changed my mind regarding them and adopt them now.[55] Document 241 contains a number of submissions made to ASIC in response to the call for submissions in the Discussion Paper issued on 5 September 2002. Among those responses is a submission made by Taylor Woodings to ASIC regarding the Financial Reporting and Meeting Obligations of Companies in Administration. From its content and its date, I am satisfied that the relevant part of Document 241, being the submission made by Taylor Woodings, was prepared in response to ASIC’s invitation. I find that Taylor Woodings’ submission was clearly marked with the word “CONFIDENTIAL” in italicised, capitalised and bolded lettering on its covering page and immediately under its description as a “Submission by Taylor Woodings Chartered Accountants”. It was a description clearly intended to apply to the whole of the submission.
[55] [2010] AATA 649; (2010) 118 ALD 23 at [463]-[464]; 162-163

(3) Document 262 and Additional Documents 36 and 58
Document 262 is an email dated 28 February 2003 from Ms Sue Hansen to Mr Stephen Yen and others entitled “Internal consultation on financial reporting and AGM obligations of externally administered companies”. It attaches a draft of a draft of a Policy Statement entitled “Externally administered companies: Financial reporting and AGMs”.
Additional Documents 36 and 58 begin with the same covering email. They contain slightly different material but, like Document 262, each contains the same draft Policy Statement. ASIC has claimed exemption for the same sentence in [15] on page 4. It begins immediately after the word “inclusion.)” in the third line of the paragraph and ends in the fifth line with the word immediately preceding “Our”. I am satisfied that passage would reveal material from the Taylor Woodings submission and is exempt under s 45. Each of the three documents is exempt under s 45 in so far as that sentence is concerned.
Exemption has also been claimed for the first sentence appearing in [22A] on the seventh page of each of the three documents. That sentence also reveals the contents of the Taylor Woodings submission and is exempt under s 45.

(4) Document 287 and Additional Document 45
Document 287 is a draft RPG paper for RPG meeting No. 230 and Additional Document 45 is the final version of it. The document is headed “Externally administered companies: financial reporting and AGMs”. They differ in their presentation in that Document 287 has been printed with two pages per page and Additional Document 45 with only one.
In so far as the material claimed to be exempt is concerned, the two documents are identical. I am satisfied that it is exempt under s 45 in that it reveals material in the Taylor Woodings submission. It is to be found at paragraph 13(c) on substantive page 4 of each document and the third sentence beginning after “inclusion).” in [26] on substantive page 7.

(5) Document 289
Document 289 is a revised final copy of a document entitled “Externally administered companies: financial reporting and AGMs” prepared for the RPG meeting No. 231 held on 9 April 2003. The material that I have found to be exempt in relation to Document 287 and Additional Document 45 also appears in Document 289. For the same reasons, it is exempt. It appears at [13(d)] on page 4 and the first full sentence appearing in [26] at the beginning of page 7 and after “inclusion).”

(6) Documents 307 and 312 and Additional Documents 61, 62 and 63
Documents 307 and 312 and Additional Documents 61, 62 and 63 are all copies of an RPG submission for an RPG meeting No. 231 to be held on 9 April 2003. Document 312 has been altered by hand to update it for presentation to an RPG meeting No. 233 to be held on 7 May 2003.
The material for which exemption is claimed is the same in each. The first passage appears at [13(d)] as it does in Document 289. The second passage appears at [29] following “inclusion).” In the case of Document 307 and Additional Documents 61, 62 and 63, it is the last sentence in that paragraph and in the case of the other Additional Document 312, it is the last. I am satisfied that each passage is exempt under s 45 on the basis that it reveals submissions made by Taylor Woodings.

(7) Documents 312A, 316 and 323
Each of Documents 312A, 316 and 323 is a copy of an RPG submission for an RPG meeting No. 233 held on 7 May 2003. The documents are printed differently in that Document 316 is printed two pages to a single page. The passages for which exemption is claimed are the same as, and appear in the same positions as, those in Document 287 and Additional Document 45 i.e. at paragraph 13(d) on substantive page 3 of each document and the third sentence beginning after “inclusion).” in [29] on substantive page 8. I am satisfied that it is exempt under s 45.

ISSUE: claim that documents contain irrelevant or publicly available information

Section 22

Section 22 applies in two situations. The first arises when a document contains information that would lead to a decision not to grant a request for access to it on the ground that it is an exempt document. The second arises when granting access to that document under the FOI Act would disclose information that could reasonably be regarded as irrelevant to the request. If either arises, the agency or Minister must decide if it is possible to make a copy of the documents with such deletions that the copy would not be an exempt document or that it would not disclose irrelevant information, as the case might be.[95] Having decided that it is possible to make such a copy, the agency must then ask whether:
“it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy …”[96]

[95] FOI Act, s 22(1)(b)

[96] FOI Act, s 22(1)(c)

If it is reasonably practicable:
“… the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.”[97]
[97] FOI Act, s 22(1)(c)
Interpretation and application of section 22

What “would reasonably be regarded” as irrelevant to the request must be assessed by reference to a comparison of the request made under s 15 with the information in the document under consideration. The comparison needs to be made against a background of the object of the FOI Act. In part, that object is to “… extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth …”.[98]
[98] FOI Act, s 3(1)

The starting point is the request for an assessment of what would reasonably be regarded as irrelevant to it can only be made once its parameters are determined. It must provide “… such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or the Minister, to identify it”.[99] Those who make requests may not know the correct terms in which to frame their requests. That should not mean that their requests are read narrowly. Rather, they should be interpreted fairly with an eye to what the person making a particular request is trying to describe regardless of the terms used.

Is there material that is exempt or irrelevant to Mr Matthews’ request within the meaning of section 22?

[99] FOI Act, s 15(2)(b)

A.Documents containing irrelevant material

I will begin with those documents claimed either to be irrelevant to Mr Matthews’ request or to contain material that is irrelevant. Mr Matthews’ request is set out at [11] above. In essence, he seeks two groups of documents. The first group comprises those regarding the rationale for, and implementation of, CO 02/978 and PS 174 but he does not want them if they are already publicly available. The second group comprises those that relate to ASIC’s investigations into Otter Gold, Allstate Explorations and Beaconsfield Gold. Again, Mr Matthews does not ask for those documents that are already publicly available.

A.1 Document 186 and Additional Documents 10, 37, 44, 50 and 95

I have examined each of the documents and am satisfied that, apart from Document 37, each is irrelevant to Mr Matthews’ request in its entirety. Lest it might be questioned why they were included among the documents in the first place, I would note that, if there is any doubt, it is better for an agency to read and respond to a request in wider, rather than narrower terms. In this instance, ASIC’s claims for exemption have related to documents filling 29 three inch lever arch folders in the first hearing and a further three of those folders in this hearing. It is not surprising that a tiny number of irrelevant documents have found their way into the collection.

The six documents I find to be irrelevant are described as:
(1)Document 186 is a printout of an email dated 9 September 2002 regarding an application for relief made by ALWA. I have described it in greater detail at [110] above.
(2)Additional Document 10 is a printout of a media search but the results do not relate to the material sought by Mr Matthews.
(3)Additional Document 44 is a draft Regulation Impact Statement on a subject entirely unrelated to Mr Matthews’ request.
(4)Document 50 is an RPG submission regarding an application for relief by ALWA for relief under s 340 of the Corporations Act. It does not relate to the matters requested by Mr Matthews.
(5)Document 95 is an email dated 16 November 2001 regarding the review of PS 43 regarding financial reporting and exemptions for companies in external administration. It is not relevant to Mr Matthews’ request.

Additional Document 37 is a different matter. It is an RPG submission relating to an application for exemption from financial reporting requirements. The particular details of the application are irrelevant to Mr Matthews’ request as is the RPG’s consideration of the application. What is not irrelevant is the discussion of the general principles underlying what then Interim PS 174. That discussion begins at line 3 on page 5 of Document 37 with the word “Key”. It ends on the following page, page 6, in line 39 with the word “position”.

A.2Documents 244, 311 and 312B and Additional Documents 7, 40 and 55

Documents 244 and Additional Documents 7 and 55 are copies of each other. They are minutes of an RPG meeting held on 14 August 2002. Each contains passages that are irrelevant to Mr Matthews’ request. Those passages appear at page 2 beginning on line 4 with the word “Agenda” to the end of the page and the whole of pages 5, 6 and 7.

Document 311 is an RPG agenda. No item on that agenda relates to any matter requested by Mr Matthews.

Document 312B records the minutes of an RPG meeting. Pages 8 to 12 record matters relating to particular applications for relief made to the RPG. They have been made by entities other than those at the heart of Mr Matthews’ request. They are irrelevant to his request.

Additional Document 40 is entitled “Financial reporting and AGM obligations for companies in external administration under Part 5.3A Regulation Impact Statement”. Its substance has no relevance to Mr Matthews’ request for access to documents “regarding the rationale for and implementation of ASIC Instrument CO 02/968 and Policy Statement 174” or to the investigation of Otter Gold, Allstate Explorations and Beaconsfield Gold. Therefore, I find that it is irrelevant to Mr Matthews’ request in all respects other than its heading.

Is it reasonably practicable for ASIC to make a copy without the irrelevant material?

Although ASIC has not suggested to the contrary, for the sake of completeness I note that I am also satisfied that it is both possible and reasonably practicable for ASIC to make a copy of each of Documents 244, 311 and 312B and Additional Documents 7, 37 and 55 without the passages I have found to be irrelevant. Therefore, Mr Matthews should be given access to a copy of each of those documents with that material deleted. He will not be given copies of Document 186 and Additional Documents 10, 40, 44, 50 and 95 because no part of them is relevant to his request.

I have reached the same decision in relation to the other documents that I have found to contain material that would lead to their being exempt from disclosure under the FOI Act if that material were not excluded from disclosure. It is both possible and reasonably practicable to make a copy of those documents without that material.

DECISION

For the reasons I have given, I decide:
(1)in relation to documents containing passages found to be exempt when appearing in other documents considered in decision [2010] AATA 649:
(a)In so far as it contains the following passages, Document 308 is exempt from disclosure under:
(i) s 37(1)(b) of the Freedom of Information Act 1982 (FOI Act):
A.the passage on page two beginning with the word “A” in the fourteenth line and ending with the word ‘meeting’ on the seventeenth line; and
B.the passage on page two beginning with the word “Several” in the twenty third line and ending with the word ‘that’ in the thirtieth line.
(ii)ss 36 and 40(1)(d) of the FOI Act:
A.the passage commencing at line 16 on page 2 with the word “MR” and ending with the word “Yes” on the twelfth line page 3.
(b)In so far as it contains the following passage, Document 312 is exempt from disclosure under:
(i)ss 36 and 40(1)(d) of the FOI Act:
A.a handwritten annotation at the top of page 15 beginning “(” and ending immediately before the sentence beginning with the word “The”.
(c)In so far as it contains the following passages, Additional Document 5 is exempt from disclosure under s 42 of the FOI Act:
(i)[12] on page 4, [40]-[46] on page 8 and [47] on page 9.
(d)In so far as it contains the following passages, Additional Document 66 is exempt from disclosure under s 42 of the FOI Act:
(i)[7] on page 4 and [34]-[41] on pages 7-8.
(e)In so far as they contain the following passages, Additional Documents 51 and 54 are exempt from disclosure under s 42 of the FOI Act:
(i)the final three sentences beginning with the word “This” in [7].
(2)in relation to documents considered in decision [2010] AATA 649 and in relation to documents subsequently identified by the respondent as coming within the terms of the applicant’s request:
(a)In so far as it contains the following passages, Document 241 is exempt from disclosure under s 41 of the FOI Act:
(i)the name and contact details following the word “Contact” on page 5, the name and signature at the foot of page 10, all names appearing on pages 11 and 12 other than that of Mr Michael Dwyer, the name and contact details of the contact person on page 19, the name and contact details on the author of a letter on page 27, the name and contact details of the author of a letter on page 31, the name and contact details of the author of an email on page 38, the name and contact details of the contact person shown on a letter on page 39, the name and contact details of the author of an email on page 44, the name of the author of a letter on page 47, the name of the author of a submission on page 52, names and contact details of all persons other than Ms Erica Gray on page 58, the name and contact details following the word “Contact” on page 59 and the name and signature at the foot of page 64.
(b)In so far as it contains the following passages, Document 323 is exempt from disclosure under s 41 of the FOI Act:
(i)the handwritten note written on the side of [62] on page 15.
(c)In so far as it contains the following passages, Additional Document 40 is exempt from disclosure under s 41 of the FOI Act:
(i)the handwritten name and telephone number appearing at the foot of the first page.
(d)In so far as they contain the following passages, Additional Documents 52 and 83 are exempt from disclosure under s 41 of the FOI Act:
(i)Additional Document 52:
the names and contact details appearing at pages 3, 9, 17, 26, 31, 32, 33, 34, 39, 50, 56, 61, 62, 67, 75, 88, 92, 98, 106, 115, 120, 121 and 122; and
(ii)Additional Document 83:
at pages 1, 6, 9, 14, 27, 31, 36, 37, 45, 54, 59, 60, 61, 62 and 68.
(e)In so far as it contains the following passages, Additional Document 53 is exempt from disclosure under s 45 of the FOI Act under:
(i)s 41 of the FOI Act:
A.the name appearing in handwriting immediately below the words “ASIC discussion paper”; and
(ii)s 45 of the FOI Act:
A.the reference to the name of Taylor Woodings and the content immediately preceding that reference on the first page.
(f)In so far as it contains the following passages, Additional Document 65 is exempt from disclosure under s 45 of the FOI Act under s 41 of the FOI Act:
(i)the name appearing in handwriting in the margin immediately to the left of the paragraph numbered “B”.
(g)In so far as it contains the following passages, Additional Document 94 is exempt from disclosure under s 41 of the FOI Act:
(i)the private contact details of Ms Joanna Bird, an ASIC officer.
(h)In so far as they contain the following passages, Document 186 and Additional Document 50 are exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)paragraphs [8]; [16]; [25]; first dot point] and [30]-[34]; and
(ii)Attachments 1 (Application for exemption) and 4 (Extract from Financial Statements).
(i)In so far as it contains the following passages, Additional Document 37 is exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)the whole of the document other than:
A.line 3 on page 5 beginning “Key” and ending “ground” in line 42 on page 6;
B.line 42 on page 8 beginning “What” and ending “2M” in line 45 on the same page;
C.line 43 on page 9 beginning “How” and ending “Nil” in line 51 on the same page;
D.line 11 on page 10 beginning “ASIC” and ending “N/A” in line 21; and
E.line 1 on page 11 beginning “List” and continuing to the end on that page.
(j)In so far as they contain the following passages, Documents 244 and 312B and Additional Document 55 are not exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)Document 244:
A.passage commencing “Unlisted” ending with the word “decision” on page 7; and
(ii)Document 312B:
D.passage commencing after the words “Regulatory Policy Group” ending with the word “relief” on page 14; and
E.passage commencing “Other items” and ending “Noted” on page 14;
F.whole of pages 11 to 13; and
(iii)Additional Document 55:
A.passage commencing “Unlisted” ending with the word “decision” on page 7.
(k)In so far as it contains the following passages, Document 311 is not exempt from disclosure under s 43(1)(c)(i) of the FOI Act:
(i)list of names of applicants for relief under s 340B of the Corporations Act 2001.
(l)In so far as they contain the following passages, Additional Documents 52 and 83 are exempt from disclosure under s 45 of the FOI Act:
(i)Additional Document 52:
A.the whole of pages 44 to 49; and
B.the whole of pages 82 to 87; and
(ii)Additional Document 83:
B.the whole of pages 21 to 26.
(m)In so far as they contain the following passages, Document 258 and Additional Document 6 are exempt from disclosure under s 45 of the FOI Act:
(i)Document 258:
A.the second sentence beginning “It” in line 3 of page 8 on page 8; and
B.the whole of the first paragraph beginning “One” on page 13; and
(ii)Additional Document 6:
A.the second sentence beginning “It” in line 3 of page 7 on page 8; and
B.the whole of the first paragraph beginning “One” on page 12.
(n)In so far as it contains the following passages, Document 260 is exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.
(o)In so far as it contains the following passages, Document 274 is exempt from disclosure under s 45 of the FOI Act:
(i)the fourth sentence in the paragraph numbered “3” on the second page.
(p)In so far as it contains the following passages, Documents 312A and 323 and Additional Documents 61, 81 and 82 are exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.
(q)In so far as it contains the following passages, Additional Document 53 is exempt from disclosure under s 45 of the FOI Act:
(i)the handwritten reference to Taylor Woodings on page 1.
(r)In so far as it contains the following passages, Document 78 is exempt from disclosure under s 45 of the FOI Act:
(i)the whole of pages 12 to 15.
(s)In so far as it contains the following passages, Document 79 is exempt from disclosure under s 45 of the FOI Act:
(i)the last five lines on page 1 of Document 79 and the first 12 lines on page 2.
(t)In so far as it contains the following passages, Additional Document 80 is exempt from disclosure under s 45 of the FOI Act:
(i)the notes summarising each response made by Taylor Woodings in its submission.
(u)In so far as it contains the following passages, Document 258 is exempt from disclosure under s 45 of the FOI Act:
(i)the handwritten note appearing on the page numbered “5” between the end of the first full paragraph and the beginning of the second together with the handwritten note to the left hand side of the first note.
(v)In so far as they contain the following passages, Document 262 and Additional Documents 36 and 58 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning in line 7 of [22A] on page 6 of the attachment (page 7 of the document) to each document immediately after the word “companies).”.
(w)In so far as they contain the following passages, Document 255 and Additional Document 93 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning “As” in the second paragraph of the covering email in each document.
(x)In so far as they contain the following passages, Document 258 and Additional Document 6 are exempt from disclosure under s 45 of the FOI Act:
(i)the sentence beginning with the words “In addition” in [25] on page 6 of Document 258 and page 5 of Additional Document 6; and
(ii)the final paragraph on page 12 (page numbered 11) on Document 258 and on page 11 of Additional Document 6 together with the first full paragraph on page 13 (page numbered 12) on Document 258 and on page 11 of Additional Document 6.
(y)In so far as they contain the following passages, Document 261 and Additional Document 76 are exempt from disclosure under s 45 of the FOI Act:
(i)the second full sentence in [22] on page 7 of Document 261 and page 6 of Additional Document 76) and the last sentence of [53] on page 14 of Document 261 and on page 13 of Additional Document 76.
(z)In so far as they contain the following passages, Document 262 and Additional Documents 36 and 58 are exempt from disclosure under s 45 of the FOI Act:
(i)the passage beginning immediately after the word “inclusion.)” in [15] on page 4 and ending immediately before the sentence starting “Our”;
(ii)the first sentence appearing in [22A] on page 7.
(aa)In so far as they contain the following passages, Document 287 and Additional Document 45 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(c)] on substantive page 4 and the third sentence beginning immediately after the word “inclusion.)” in [26] on substantive page 7.
(ab)In so far as it contains the following passages, Document 289 is exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(d)] on page 4 and the first full sentence in [26] at the beginning of page 7 and after the word “inclusion).”.
(ac)In so far as they contain the following passages, Documents 307 and 312 and Additional Documents 61, 62 and 63 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(d)] in each document and the last sentence of [29] immediately following the word “inclusion).”
(ad)In so far as they contain the following passages, Documents 312A, 316 and 323 are exempt from disclosure under s 45 of the FOI Act:
(i)Paragraph [13(c)] on substantive page 4 and the third sentence beginning immediately after the word “inclusion.)” in [29] on substantive page 78.
(3)In relation to s 22 of the FOI Act, I decide that:
(a)Documents 186 and Additional Documents 10, 37, 44, 50 and 95 are irrelevant to the request made by the applicant and are not accessible under the FOI Act.
(b)in relation to Document 37:
(i)the passage beginning at line 3 on page 5 with the word “Key” and ending at line 39 on page 6 with the word “position” is not irrelevant to the applicant’s request; and
(ii) the remainder of the document is irrelevant to the applicant’s request.
(c) the passages beginning with the word “Agenda” on line 4 at page 2 of Additional Documents 7 and 55 to the end of the page and the whole of pages 5, 6 and 7 are irrelevant to the applicant’s request.
(d)Document 311 is irrelevant to the applicant’s request.
(e)Document 312B is irrelevant to the applicant’s request.
(f)Other than its heading, Additional Document 40 is irrelevant to the applicant’s request.
(4)As it is reasonably practicable to make a copy of each of the documents from which the material I have found to be exempt or irrelevant has been deleted, the respondent is to give the applicant access to the documents identified above but from which the exempt and irrelevant material has been deleted.

I certify that the one hundred and forty seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ………[sgd].......................................

Associate

Date of Hearing  23 July 2014
Date of Last Submission  18 August 2014
Date of Decision  24 October 2014
Self-represented Applicant                Mr William Matthews
Self-represented Joined Party            Mr Jeffrey Knapp
Counsel for the Respondent              Mr Graeme Hill
Solicitor for the Respondent              Mr Matthew Povey, Mr Aldo Pacciocco and
Ms Judith Birch
Australian Securities & Investments Commission Administrative Law Team