The Applicant and Comcare and Inman - [2013] AATA 538

[2013] AATA 538

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2012/0332, 0333, 0334

Re

THE APPLICANT

APPLICANT

And

COMCARE

RESPONDENT

And

MICHAEL INMAN

THIRD PARTY

INTERLOCUTORY DECISION

Tribunal Professor RM Creyke, Senior Member

Date 2 August 2013

Place Canberra
The access request is denied.
.....................................[sgd]...................................
Professor RM Creyke, Senior Member
CATCHWORDS
Practice and procedure – matter settled under s 42C – application by third party for access to documents and terms of agreement – unreasonable disclosure of personal information – application denied
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) sections 35 and 42C
Privacy Act 1988 (Cth) sections 10, 14
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14
CASES
BK v ADB [2003] VSC 129
Deloiotte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562
Director of Public Prosecutions v Smith [1991] VR 63
Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435
Re JTMJ and ASIC [2010] AATA 471
National Australian Bank Ltd v KRDV [2012] FCA 543
O’Sullivan v Farrer (1989) 168 CLR 210
Osland v Secretary to the Department of Justice (2010) 116 ALD
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45
SECONDARY MATERIALS
Privacy and confidentiality at the AAT
Administrative Appeals Tribunal Policy Relating to Sections 34D and 42C of the Administrative Appeals Tribunal Act 1975
‘AAT decisions’, Administrative Appeals Tribunal website
REASONS FOR INTERLOCUTORY DECISION
Professor RM Creyke, Senior Member
2 August 2013

The applicant sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 14.
On 21 June 2013, the parties reached a consent agreement which was approved by decision of the Tribunal under section 42C of the Administrative Appeals Tribunal Act 1975 (Cth) (Act).
On 21 June 2013, Mr Michael Inman, a journalist with The Canberra Times, requested that he see the file and the consent agreement for these matters.
The Tribunal responded on 27 June 2013 noting that it does not generally allow a third party to inspect documents relating to an application unless a public hearing has been held and that access to documents would only be granted if a Tribunal Member was satisfied that there was good reason to permit access. Mr Inman was advised that he could request a hearing in relation to the request.
Mr Inman was also advised that he could access certain information in relation to those files. The information includes the names of the parties and any representatives, the type of case, the dates of conferences, hearings or other case events, the types of documents lodged by the parties and how an application is finalised.[1]
[1] Privacy and confidentiality at the AAT, 2.
Mr Inman responded asking why the documents had been suppressed in the absence of a request for confidentiality, given the public interest in the matter and the fact that certain details about the applicant’s health and its connection with his former workplace had already been published in reports by the National Audit Office and the Senate Privileges Committee.
On…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2013] AATA 538
Decision Date: 2 August 2013

CaseChat Overview and Summary

The case involves an applicant who has applied for access to documents and the terms of a settlement agreement in a matter that has been resolved under section 42C of the Administrative Appeals Tribunal Act 1975. Comcare and Inman are the other parties involved in the dispute. The applicant has opposed the disclosure of the documents and the terms of the settlement agreement, arguing that such disclosure would result in the unreasonable exposure of his personal and sensitive information. The matter was before the Administrative Appeals Tribunal, which was required to decide whether the documents and the terms of the settlement agreement should be disclosed to the public.

The legal issues before the Tribunal were whether the disclosure of the documents and the terms of the settlement agreement would result in the unreasonable exposure of the applicant's personal and sensitive information, and whether the disclosure would be in the public interest. The Tribunal noted that the applicant had not consented to the disclosure of the documents and the terms of the settlement agreement and that it was unlikely that he had been made aware that such information would usually be passed to the media. The Tribunal also noted that there was no explicit reference to the public interest in the relevant provision of the Act, and that the discretion granted by the provision was unconfined.

The Tribunal concluded that it would be unreasonable to disclose the documents and the terms of the settlement agreement in contradiction to the expressed wishes and the reasonable expectations of the applicant. The Tribunal also noted that the public interest was not the only relevant matter to be taken into account in deciding whether to disclose the documents and the terms of the settlement agreement. The Tribunal denied the request for access to the documents and the terms of the settlement agreement.

The Tribunal denied the request for access to the documents and the terms of the settlement agreement. The Tribunal also confirmed the confidentiality order in relation to the terms of settlement made under section 42C of the Act.

Orders

Orders of the court

The access request is denied.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant through his counsel has not consented. Nor it is likely that he was either aware or had been made aware that the documents in the matter or the terms of settlement would usually be passed to the media. None of the Tribunal’s policy Privacy and confidentiality at the AAT, its Policy Relating to Sections 34D and 42C of the Administrative Appeals Tribunal Act 1975 or its discussion on the website of ‘AAT decisions’ indicates that information contained in terms of settlement are usually made public. In those circumstances, it would be unreasonable to disclose this personal and sensitive information in contradiction to the expressed wishes and the reasonable expectations of the applicant.Conclusion Accordingly the Tribunal prohibits access to the documents relating to the matters settled by consent, and to the terms of settlement pursuant to section 35(2)(b) of the Act.

Ratio Decidendi

Legal Principle Established

On 18 July 2013 a further directions hearing was held to hear from Mr Inman. His submission was that he was inhibited from making any substantive submission since he was unaware of the content of the documents. Accordingly he made no substantive submission, except to say that the applicant’s personal information was already in the public arena. The matter was adjourned.Consideration The Tribunal has decided that the 10 July 2013 confidentiality order in relation to the documentary evidence relating to the application for compensation by the applicant will not be amended and Mr Inman’s request for access is denied. The Tribunal is also confirming the confidentiality order in relation to the terms of settlement made under section 42C of the Act.Documents In general ‘the hearing of a proceeding before the Tribunal shall be in public’ (Act section 35(1)). However, an exception to this principle applies where the Tribunal ‘is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason’ (Act section 35(2)). If that test is satisfied the Tribunal may, among other things, prohibit or restrict the publication of ‘matters contained in documents lodged with the Tribunal’ (Act section 35(2)(b)). In refusing access, the Tribunal must give due regard to the reasons why publication or disclosure should be prohibited or restricted (Act section 35(3)). Such a step is a grave one and is not taken lightly.[2][2] Re JTMJ and ASIC [2010] AATA 471 at [19]. Mr Inman has argued that there is a public interest in the matter and that much of the medical and work-related evidence concerning the applicant is already in the public arena, having been published in the reports to which he refers. Counsel for the applicant has advised that disclosure is opposed, and counsel for the respondent does not support or oppose disclosure. There is no explicit reference to the public interest in section 35(2) of the Act, the provision being relied on by the Tribunal. Rather the expression refers only to the ‘confidential nature of any evidence or matter or for any other reason’. Apart from the reference to the need to take account of the ‘confidential nature’ of the material, the discretion granted by section 35(2) is unconfined. In particular the Tribunal is able to take account ‘of any other matter’ it considers relevant. That does not mean that the public interest is not a relevant matter.[3][3] O’Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson & Gaudron JJ; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49. However, even where there is a statutory prescription to take account of the public interest, the discretion is a broad one.[4] In that context the Full Court of the Victorian Supreme Court said of the expression ‘the public interest’ that it is:…a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.[5][4] Deloiotte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 at 579 per Lindgren J; Osland v Secretary to the Department of Justice (2010) 116 ALD 1 at 18 per French CJ, Gummow & Bell JJ.[5] Director of Public Prosecutions v Smith [1991] VR 63 at 76 per Kaye, Fullagar & Ormiston JJ.

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2012/0332, 0333, 0334
Re	THE APPLICANT
APPLICANT
And	COMCARE
RESPONDENT
And	MICHAEL INMAN
THIRD PARTY

Tribunal	Professor RM Creyke, Senior Member
Date	2 August 2013
Place	Canberra