Wiseman, G.P. v Defence Service Homes Corporation

[1989] FCA 169

JUDGMENT No. .. 4 9 ......- Y 89 ;

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT	OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)	NO. NG aa of 19aa
)
GENERAL DIVISION	1

ea1 from a decision of the

!?F=--	A ministrative Appeals Tribunal
BETWEEN:  GORDON PETER WISEMAN

Applicant

-	AND :	DEFENCE SERVICE HOMES
CORPORATION

Respondent

CORAM:	Davies J.
-	DATE :	15 March 1989
PLACE:	Sydney

REASONS FOR JUDGMENT

EX TEMPORE

Wiseman, had been married to Jose Diana Wiseman and that the

This is an appeal from a decision of the

Administrative Appeals Tribunal given on 23 December 1987
which held that certain documents in the possession of the
Defence Service Homes Corporation ("the Corporation") were
exempt documents under the Freedom of Information Act 1982

(Cth) ("the F01 Act").

It appears that the applicant, Gordon Peter

marriage had been dissolved in late 1979. Subsequently,

there were proceedings In the Family Court of Australla

between Mr Wiseman and hls former wife and, on 4 March 1981,

the Family Court ordered, inter alia, that Mr Wiseman transfer his interest in the former matrimonlal home situated at and known as 106 Government Road, Nelson Bay, to

Mrs Wiseman and do all things necessary to effect the transfer.

The Court further ordered that the wife indemnlfy Mr Wiseman against all liability to pay any sums due and payable under the Defence Service Homes' loan on that

property and, should Mr Wiseman fail within seven days of

the date of the order to effect the transfer, the Registrar of the Family Court was empowered to execute all instruments and to do all acts and all things necessary to give effect

to the transfer.

As made clear by that order, there was a mortgage

upon the property, moneys having been advanced by the

Corporation.

Section 35 of the Defence Service Homes Act 1918

(Cth) provides, inter alia, that:-

"(1)	So long as any land or land and dwelling house is subject to a ... mortgage ... in
accordance vith this Act, a transfer ... of that land or land and welling house or any
estate or interest therein shall not have any
force or effect unless it -
* * * * * * * *
(b) is made by a person acting in the capacity
of executor or administrator of the purchaser
or borrower; or
(c) is made with the consent in writing of the
Corporation."

Accordingly, for the transfer of M C Wiseman's rnterest rn the home, the consent of the Corporation was necessary.

MC Wiseman did not execute a transfer and so the

matter came to the point where the Registrar of the Famrly Court sought to execute and give effect to the transfer. TO make that transfer valid, Mrs Wiseman and her solicitor then

sought the consent in writing of the Corporatlon.

It was the then policy of the Corporation that the

Corporation would consent to a transfer of property ordered
by the Family Court subject to three circumstances:
firstly, that the Corp3ration assure itself that the
transferee had the capacity to meet the obligations under
the mortgage and all other outgoings on the home; secondly,
that the Corporation receive an assurance that the home

would continue to be used as

and children; and, thirdly, that the Corporation receive an a home for the former spouse

assurance that the former spouse had no intention of

remarrying.

To satisfy the terms of that policy, Mrs Wiseman

gave the Corporation a statutory declaration with respect to
remarriage. Some letters were also written giving
assurances with respect to the persons who would live in the
home and also giving details of Mrs Wiseman's financial
affairs, so as to satisfy the Corporation that Mrs Wiseman

could keep up the payments under	the mortgage.
Those documents were supplied to the Corporatlon In 1981 before the coming into operation of the	F01 Act. In

1987, Mr Wiseman sought access to those documents pursuant

to the terms of the F01 Act.

The documents and some others were considered by

the Corporation to be exempt documents under s.41 and under

6 . 4 5 of the PO1 Act. Mr Wiseman applied for a review by the

Administrative Appeals Tribunal of that decision refusing access and it is the decision of the Tribunal on that application which is the subject of these proceedings. The Tribunal affirmed the decision of the Corporation save that the Tribunal held that three documents were not exempt, not

being documents which were the subject of confidentiality

and not being documents the disclosure of which would be

unreasonable.

This being an appeal from the Administrative

Appeals Tribunal, it is first necessary to point out that the appeal is limited to a question of law. This is not an appeal by way of rehearing but an appeal strictly on a point

of law.

In a recent decision in Commlssioner of Taxation v.

Dunn, I said:-

"Insofar as a decision of the Tribunal turns
upon a matter of fact, the ascertainment of

that fact is for the Tribunal not for this

Court. As Brennan	J. said in Waterford v. The
Commonwealth (1987) 61 ALJR 350 at p. 359:-	-

'A finding by the AAT on a matter of fact

cannot be reviewed on appeal unless the finding is vitiated by an error of law.

Section 44 of the AAT Act	confers on a
party to a proceeding before the AAT	a

right of appeal to the Federal Court of

Australia 'from any decision of the
Tribunal in that proceeding' but only 'on
a question of law'. The error of law
which an appellant must rely on to

succeed must arise on the facts as the

AAT has found them to be	or i t must
vitiate the findings made	or i t must have
led the AAT to omit to make	a finding i t
was legally required to make.	There is
no error of law simply in making	a wrong
finding of fact."

Nevertheless, as Brennan	J. pointed out, all
those errors which provide grounds	of judicial

review under the Administrative Decisions
(Judicial Review) Act 1977 (Cth) provide
grounds of law encompassed in an appeal under
s.44 of the Administrative Appeals Tribunal
Act. A tribunal will make an error of law in
5 relevant sense if it breaches the rules of
natural justice in the conduct of its
proceedings, if it takes into account some

immaterial consideration, if it fails to give

attention to a material consideration, or if

its decision was o unreasonable having

regards to the facts before it that no

reasonable.tribuna1 could have come to such	a
conclusion. See, eg.,	Edwards (Inspector of

Taxes) v. Bairstow and Anor [l9561 AC 14."

I will apply those principles in the present case. Even

stronger remarks can be found	in other cases. For example,
in -	R. v. Hillingdon London Borough Council; Ex parte
Puhlhofer [l9861 AC	4 0 4 Lord Brightman said at p.518:-

"Where the existence OK non-existence of a fact

is left to the judgment and discretion of a

public body and that fact involves a broad

spectrum ranging from the obvious to the

debatable to the just conceivable, i t is the

duty of the court to leave the decision of

that fact to the public body to whom

Parliament has entrusted the decision-mkiny power save in a case where i t is obvious that the public body, consciously or unconsciously, are acting perversely."

Remarks similar to those made by Lord Brightman were made by

M r Justice Deane in Sean Investments v. Mackellar (1981) 38

A.L.R.	363 at pp.374-375.	I have emphasized this point for
the matters that the Administratlve Appeals	Tr	,ibunal had to

consider were primarily questions of fact, not	questions of
law.

Although they were primarily questions of fact, one may examine the reasoning process to determine whether there was some error either in the approach to the factual

question or in the qustion which the Tribunal posed for
itself which may give rise to an error of law. But, as I
have said, it is not for this Court to form its own view on

points of fact. The judgment as to the facts was a judgment

f o r the Tribunal.

Before turning to the provisions of s.41 and s.45

of the F01 Act, it is desirable that I should mention the
difference between the F01 Act and other statutes which may
provide access to information.

Section 13 of the Administratlve Decisions

(Judicial Review) Act 1977 permlts a person to obtain from a

decision-maker who has made a decislon under a federal
enactment the reasons for that decision. Such reasons are
to include a statement of the facts upon whlch the declsion
was based and a statement of the material upon whlch the
findings of fact were made. In my opinion, MC Wlseman was a
person who would have had an interest sufflcient to justify
the making of a request under s.13 of that Act and would
have had a sufficient interest to challenge the decision of

the Corporation pursuant to the provlsions of that Act had

he sought to do so. Of course, any such application is now

barred by the passage of time, but I should make it clear

that I accept that MC Wiseman would have been a person

interested, for the purpose of that Act, in the decision

made by the Corporation.

Other Acts may similarly look to the particular

interest which a person has in information which he or she

seeks to obtain. The Privacy Act	1988 has such provisions.
It aims at keeping information private, but permits the
disclorurc of information to	a person who has a particular
interest in its disclosure.

The FOI Act, however, proceeds upon an entlrely

different footing. It does not concern itself with the

interest of the person who seeks access to information. It

is an Act which is concerned to make available to the public

information about the operations of government departments
and public authorities.

Therefore, when 5.11 provides for the making of

applications, it provides that every person has a legally
enforceable right to obtain access to a document of an
agency other than an exempt document. The F01 Act 1s
therefore not concerned with the interest which the

applicant for information has in the information sought.

Disclosure under the Act is drsclosure to the

public, and if one person can get that information, any

member of the public is entitled to do so. Every person may

apply for access to a document which is not an exempt

document.

"A document is an exempt document	if its
disclosure under this	Act would constitute a
breach of confidence."

The first observation I make about that provision is that

the disclosure to which the Act turns its attention is
disclosure to the public. Therefore the breach of
confidence to which it directs its attention IS drsclosure
of information to the public contrary to the confidence
reposed in the communication of that information to the
department or authority, disclosure having taken place on
the footing that the information would not be disclosed to
the public.

The second observation I make is that the confidential relationship has to arise out of the circumstances of the communication, those Circumstances

giving rise to an express or implied relationship of confidence. In my opinion, in applying the section, one does not look to common law or equitable principles which

would permit disclosure of information which had been
communicated in confidence, but the disclosure of which, for

example, would be in the public interest.

I dealt with this matter in Re Maher and

Attorney-General's Department (1985)	7 ALD 731. At
pp.137-738, I said:-

"Sections 33(l)(b) and	45 (the general
confidentiality exemption)	of the F01 Act are

concerned not only with communications which would be protected by courts under the common law principles with respect to express or

implied obligations of confidence or by courts

of equity with respect to communications made

under special relationships but also with

information that was communicated to an agency
in confidence, that is to say, information

that was communicated and received under an

express or inferred understanding that the
communication would be kept confidential	(cf

Re Pitheford and Department of Foreign Affairs

(1983) 5 ALD 534, 542;	Re Brennan and Lav
Society of Australian Capital Territory	(No

A84/29, delivered 5 July 1985) paras 30,
37-0).

It is not to be expected that precedents can be found in the legal authorities for all the types of circumstances that meet that

criteria. The courts of common law require

there to be an express or implied duty of

confidence, a breach of which would give rise

to an action for damages. Courts of equity
require a fiduciary or other special
relationship and for it to be established that
the information that was in fact communicated
was confidential and ought to be protected.
In the past, courts have not been much

concerned with communications to	or between
agencies of the Commonwealth	for, until the
coming into operation	of the F01 Act in this
country, the disclosure	of such information
could be enforced only under the	principles

established in the Crown privllege cases (see,

eg, Sankey v. Whitlam (1978) 142 CLR 1; 21 ALR

505). There are few precedents which deal

directly or even indirectly with the problem
which the Tribunal now has to consider.

It is clear, however, from such authorities as

there are, that a conclusion may be drawn that
information was communicated in confidence
either because of the particular relationship
between the parties or because the information
communicated was and would be recognized to be
of a confidential nature. The relationships
of solicitor and client, of doctor and

patient, of priest and penitent and of husband

and wife are special relationships of the type

which prima facie give rise to a relationship
of confidence. It has been recognized that
communications between a person seeking advice
and an adviser may well give rise to a
relationships of confidence. Negotiations may
give rise to a confidential situation. In the
administrative field, i t has been recognised
that communications within Cabinet or between
Cabinet and the Crown have a particular
element of confidentiality about them. In the
present case, the letter from Hr C S Stark,

Exibit TC 19, suggests that communications

between governments are to be treated as

having a special confidentiality about them."

The same view was taken by Sweeney and Jenkinson JJ., Gummow

J. dissenting, in Corrs Pavey Whiting and Byrne	v. Collector
of Customs (Vic) C1987) 7 AAR 187.	A t p.192, Jenkinson J.,

with whose views Sweeney J. agreed, said:-

"... the language of S 45(1) is not inapt to

confer exempt status on a document which contains confidential information received

under circumstances importing an obligation of

confidence, without regard to those

considerations of public policy to which

courts have allowed an influence in

determining whether to grant or withhold remedies for 'breach of confidence' in

exercise of eqitable or common law

, .

jurisdiction. That is the construction I

would adopt. I'

The Admlnistrative Appeals Trlbunal found that the

information which was communlcated by the documents it found
to be exempt was information relating to Mrs Wiseman's
personal affairs and had been communicated by her to the
Corporation pursuant to an understanding that that
information would be confidential.

As I have said, that was primarily a decision on a

point of fact.	I am not able to identify any error of law
in the Tribunal's course of reasoning. It	is not always

easy to determine whether information has or has not been

supplied under an understanding of confidence. A decislon

is simple enough if the confidence is expressed, but often
the question must be determined having regard to the nature
of the communication and the circumstances in which the

communication was made.

Mr A. Enright, counsel for Mr Wiseman, submitted

that there was no evidence before the Tribunal that the
document had been communicated by	Mrs Wiseman in confidence
to the Corporation. However, there was	a letter from Mrs

Wiseman's solicitors to the State Manager for Defence

Service Homes Corporation, dated 23 July 1987, which said:-

"We have spoken to our client and we	advise
that our client most certainly objects to	tir
Wiseman being granted access	to any

iqformation provided by her or on her behalf.

Our client has instructed us that this

information was provided on a confidential

basis and relates solely to her deallngs

between the Corporation and herself."

In my opinion, that was material that the officer of the

Defence Service Corporation was entitled to take into
account in making his decision as to whether or not the
information had been communicated to the Corporation under
an understanding of confidentiallty. Indeed, much

information before administrative decision-makers is of such

a nature. Being material that the primary decision-maker

could take into account, it was also material upon which the
Administrative Appeals Tribunal could rely, for the
Administrative Appeals Tribunal 1s not bound by the rules of
evidence. Its task is that of administrative review and It
may take into account material that an administrator would

act upon.

There was also the nature and circumstances of the

material to be looked at. The Tribunal considered that

three documents which related to the rates on the property

were not confidential documents. It took that view because

of the nature of the information contained in those

documents and held that those documents were not exempt.

As to the other information it held, and its

finding in this respect has not been challenged, that the
information related to Mrs Wiseman's personal affairs.

So there were three factors which the Tribunal

could have taken into account in its decision as to whether

' .

O K not the communications were confidential.

Firstly, there was the nature of the

communications, what they contained and the fact that they
related to Mrs Wiseman's personal affairs. The documents
appear to have been examined by the Tribunal. They are not
in evidence before the Court and I simply note that they
were examined and the Tribunal came to the view that they
were the sort of documents whlch could properly be the
subject of an understanding as to confidentiality.

Secondly, the dealing with the Corporation arose out of the proceedings in the Family Court of Australia between MC Wzseman and his former wife. Those proceedings

at the time were confidential proceedings and the provisions

now appearing in s.97 of the Family Court of Australia Act

1976  (Cth) were not then In operation. The proceedings in

the Family Court were confidential. This matter was a

matter connected with and arising out of Family Court
proceedings and it was certainly open to the Tribunal to
conclude that the circumstances of the communication were such as to give rise to an understanding that the communication would have been a confidential communication.

Thirdly, the communications were made in 1981 prior to the coming into operation of the F01 Act and, although

there was no express obligation of secrecy imposed by the

Defence Service Homes Act upon an officer of the

Corporation, there was at that time a general understanding

that information as to personal affairs would not be

disclosed by an officer of the Public Service	or an officer
of an authority such as the Corporatlon to the public.	It

was understood that informatlon relating to prlvate affairs
would only be dealt with and communicated by an officer of
the Corporation in the course of proper dealings.

The difference between information communicated

prior to the coming into operatlon of the F01 Act and
information communicated thereafter, was discussed by me in
Re Witheford (1983) 5 ALD 534 and it is a matter which is of
some relevance here. It is probably the reason for the
letter of 12 June 1987 where the Acting State Manager of the
Corporation said that the Corporation was bound by the
provisions of the Defence Service Homes Act to malntain
confidentiality of its dealings with any person. Certainly,
in 1981, that would have been the general understanding of

the Corporation’s officers and that was a matter that the

Tribunal was entitled to take into account.

there was evidence before the Tribunal from which it could Having regard to these matters, it seems to me that

have decided that the disclosure of the information would be
a breach of confidence and I see no error of law In its
approach to the question. The question that it posed was,

in my opinion, the correct question and

it took into account

relevant considerations. It did not take into account irrelevant considerations and its decision was not unreasonable.

flr Enright submitted that the confidentiallty had

lapsed because of the lapse of time. I do not dispute his

contention that time can be relevant and the nature of the

confidence may be such that it comes to an end after the

expiry of time. Nevertheless, it does not seem to me that,

in the present case, any such period of time has elapsed.

The evidence before the Tribunal was that

litigation was still proceeding between flr and f lrs Wiseman and the Tribunal would have been entitled to come to the view that the information was still of current interest and

still subject to the Understanding as to confidence.

That brings me to s.41(1) of the F01 Act which

- provides:-

"A document is an exempt document	if its
disclosure under this Act would involve	the
unreasonable disclosure	of the information

relating to the personal affairs of any person

(including a deceased person)."

I need hardly say that if the finding as to confidence is

unreasonable.

sound, it is difficult to see that disclosure would not be

Certainly, the Tribunal was entitled to come to a

conclusion that the dlsclosure of information relating to the personal affairs of Mrs Wiseman, which information had been communicated by Mrs Wiseman to the Corporation under an

understanding as to confidence, would be unreasonable.

Much of the argument that was put to me was based

on the proposition that M r Wiseman had an interest in the
decision made by the Corporatlon, which I will accept to be

the fact, and that because he had an Interest, disclosure to

him would not be unreasonable. As	I said, however,
disclosure under the Act must	be looked upon as disclosure

to the public. The Tribunal took that view and, in effect,
concluded that disclosure to the public of information
relating to Mrs Wiseman's personal affairs would be
unreasonable whether or not it had been communicated subject

to an obligation as to confidentiality.

That was, I think, a matter for the Tribunal to

determine..	The term unreasonable is not a term of
precision. There are factors to	be taken into account,

evaluations to be made and the final decision to be taken

was certainly a decision of the type that could be described

as a value judgment.

As Lord Brightman's remarks and those of Deane J.

have made clear, a Court should be slow to interfere with a
value judgment f o r the making of that ludgment is reposed

upon a decision-maker other than the Court.

Mr Enright submitted that the reasons why material

should be communicated to Mr Wiseman were so strong that
they clearly outweighed the reasons for non-disclosure and
that, therefore, the Administrative Appeals Tribunal had

i -17-

erred, for its finding on the facts of the case was

unreasonable.	I think that this 1s the substance of thls
particular point. However, as	I have said, the particular

interest which Mr Wiseman had in these documents should be
disregarded and the matter looked upon on the footing of
whether or not these documents related to Mrs Wlseman's

affairs should be disclosed to the public.

I can see no error of law in the Tribunal's

approach to the question.	For	those reasons, the appeal
must be dismissed.

I order the applicant to pay the respondent's costs

of the proceeding.

I certify that this and the 16 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Associate:  Jd&u

Date:  March 15 1989

Counsel for the applicant: Mr A. Enright

Solicitors for the applicant: Timothy Somerville and CO

Counsel for the respondent: Miss R. Henderson

Solicitor for the respondent: Australian Government Solicitor

hearing:  of Date 15 March 1989