Young, B.N. v Wicks, N.F - [1986] FCA 339

Re: BERYL NORAH YOUNG
And: N.F. WICKS
No. QLD G88 of 1985
Administrative Law (Judicial Review)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Administrative Law (Judicial Review) - request for documents under Freedom of Information Act 1982 - access allowed after internal review - effect of s.12(2) of the Freedom of Information Act - effect of phrase "proper understanding" - whether documents exempt under s.41(1) - meaning of "personal affairs" - whether documents exempt under s.43(1) - meaning of "business or professional affairs" - whether decision-maker erred in treating ss.41 and 43 as mutually exclusive - discretion of court not to make order when futile - whether documents exempt under s.38 by reason of r.283 Air Navigation Regulations - whether initial request complied with s.15(1) - request in whole context capable of being read as request for documents.

Words and Phrases - "proper understanding" (s.12(2)).

- "personal affairs" (s.41(1)). - "business or professional affairs" (s.43(1)).

Freedom of Information Act 1982 ss.12(2), 15(1), 38, 41, 43(1)(c).

Air Navigation Regulations r.270, 283.

Re Waterford and Department of Treasury (1983) 5 ALD 193

Re Williams and The Registrar of the Federal Court of Australia (1985) 8 ALD 219

Lamb v. Moss (1983) 49 ALR 533.

Bradfield v. Federal Commissioner of Taxation (1924) 34 CLR 1

Re Social and Community Welfare Services (State) Award (1984) 8 IR 361.

Re Jamieson and Department of Aviation (1983) 5 ALN 300.

Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. (l955) 2 All ER 657.

Commissioner of Taxation v. Swiss Aluminium Australia Ltd. (unreported, 26 May 1986).

Downey v. Pryor 103 CLR 353.

HEARING

SYDNEY

#DATE 30:5:1986

Counsel and Solicitors for Applicant: Mr. I. Hanger Q.C. with Mr. McGill Crown Solicitor (Queensland)

Counsel and Solicitors for Respondent: Mr. J. Greenwood Q.C. with Mr. R. Gotterson Australian Government Solicitor

ORDER

1. Until further order, publication of the contents of the confidential appendices to the reasons for judgment be restricted to the parties and their advisers.

2. Declare that, by reason of the provisions of s.12(2) of the Freedom of Information Act, a person is not entitled to obtain access to documents Nos. 1 to 36 inclusive mentioned in the second confidential appendix.

3. Declare that none of the subject documents being the documents described in the second confidential appendix are exempt under s.41(1) of the Act.

4. Declare that none of the subject documents are exempt under s.43(1)(c)(i) of the Act.

5. Declare that the subject documents are exempt documents under s.38 of the Act by reason of the application of r.283(1) of the Air Navigation Regulations.

6. Order that the respondent pay one-half of the applicant's costs of the application.

7. Reserve liberty to any party to apply for further relief as she or he may be advised on three days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The applicant, who is the senior…

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: [1986] FCA 339
Decision Date: 30 MAY 1986

CaseChat Overview and Summary

The case of Young, B.N. v Wicks, N.F involved an application for judicial review of a decision by the respondent to refuse access to certain documents under the Freedom of Information Act 1982. The applicant sought information relating to the conduct of an aviation pilot and the decisions of a regulatory authority. The matter was heard and determined in the Federal Court of Australia.

The central legal issues in the case related to the interpretation and application of various provisions of the Freedom of Information Act, including sections 41(1), 43(1)(c)(i) and 38, and the phrase "proper understanding" in section 12(2). The applicant argued that the documents in question were not exempt from disclosure and that the respondent had erred in treating sections 41 and 43 as mutually exclusive. The court was also required to determine whether the initial request for documents complied with the statutory requirements.

In its reasons for judgment, the court held that the documents sought by the applicant were not exempt from disclosure under sections 41(1) and 43(1)(c)(i) of the Act. However, the court found that the documents were exempt under section 38 of the Act by reason of the application of regulation 283(1) of the Air Navigation Regulations. The court also found that the initial request for documents did comply with the requirements of section 15(1) of the Act. The court declined to make an order for disclosure on the basis that it would be futile. The court ordered that the respondent pay one-half of the applicant's costs of the application.

The court's final orders included a declaration that the documents in question were exempt from disclosure, an order that the respondent pay one-half of the applicant's costs, and a reservation of liberty for any party to apply for further relief. The court also ordered that the contents of the confidential appendices to the reasons for judgment be restricted to the parties and their advisers until further order.

Orders

Orders of the court

1. Until further order, publication of the contents of the confidential appendices to the reasons for judgment be restricted to the parties and their advisers.

2. Declare that, by reason of the provisions of s.12(2) of the Freedom of Information Act, a person is not entitled to obtain access to documents Nos. 1 to 36 inclusive mentioned in the second confidential appendix.

3. Declare that none of the subject documents being the documents described in the second confidential appendix are exempt under s.41(1) of the Act.

4. Declare that none of the subject documents are exempt under s.43(1)(c)(i) of the Act.

5. Declare that the subject documents are exempt documents under s.38 of the Act by reason of the application of r.283(1) of the Air Navigation Regulations.

6. Order that the respondent pay one-half of the applicant's costs of the application.

7. Reserve liberty to any party to apply for further relief as she or he may be advised on three days' notice.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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