Tanner v Shergold

The case of Tanner v Shergold was heard in the Federal Court of Australia. The primary issue in the case was whether the respondent, who was the Minister for the Department of the Prime Minister and Cabinet, had properly exercised his discretion when issuing certificates of exemption under the Freedom of Information Act 1982 (Cth). The applicant, Tanner, sought an order for discovery in relation to the respondent's exercise of discretion, which was opposed by the respondent on the grounds that it was a fishing expedition. The Court had to determine whether the allegations raised by the applicant warranted an order for discovery, and if so, to what extent.

The Court found that the allegations made by the applicant were not bare allegations but were supported by detailed documents. The Court held that while the applicant was not entitled to broad-ranging discovery, the discovery sought should be tightly controlled and relevant to the issues in the proceeding. The Court held that the allegations were sufficiently detailed to warrant an order for discovery to the extent that it was necessary to determine whether the respondent had properly exercised his discretion.

The Court found that the respondent had not properly exercised his discretion in issuing the certificates of exemption. The Court found that the respondent had failed to take into account relevant considerations, such as the public interest considerations set out in the applicant's amended contentions, and had taken into account irrelevant considerations. The Court also found that the respondent had exercised the power to sign the certificates for a purpose other than for which it was conferred, namely to prevent public scrutiny of the documents. The Court found that the respondent's exercise of discretion was therefore an improper exercise of power under section 5(1)(e) of the FOI Act.

The Court ordered that the respondent file and serve an affidavit of documents by a certain date, and that the directions hearing and further hearing of the applicant's amended notice of motion be adjourned to a later date. The Court reserved costs.