The Fifth Basis- abuse of process
40 The appellant argues that the use of the Freedom of Information Act to "set up" a defamation suit amounts to an abuse of process. There are two difficulties here. First I gather that even the applicant/defendant recognises that there is an evidentiary deficiency in the present application to make good any assertion of an abuse by the respondent of process of the court.
41 The second difficulty arises from the foundation for this asserted basis. The Commissioner of Police v District Court of NSW & Anor (1993) 31 NSWLR 606 is a case not unconnected, coincidently, with the present plaintiff/respondent, (see paragraph 7 hereof). Reliance is placed upon an obiter statement of Mahoney JA at 639 in the context of "unreasonable disclosure" giving rise to a document being an exempt document under the schedule to the Freedom of Information Act. What his Honour said was this: at [639] [D-G]
"Mr Howie QC made similar submissions of error in relation to "unreasonable disclosure". His Honour was, of course, not required to express a concluded view upon this aspect of cl 6(1). If the disclosure of the names did not involve disclosure of information concerning the personal affairs of the persons concerned, it was not necessary to determine whether the disclosure of it would be "unreasonable". I think his Honour did conclude that it would not but referred to this aspect of the matter but briefly. It is sufficient to conclude, as I do, that no error of law appears in this regard.
Before leaving this part of the summons, reference should be made to one matter raised in argument. It was suggested that, in deciding whether a disclosure is "unreasonable" within cl 6(1), it is relevant to take into account the purpose for which the document or the names are sought. If that purpose be to harass the parties in question, it would, the argument suggested, be proper to hold the disclosure "unreasonable".
If disclosure were sought merely for that purpose, care would have to be exercised in deciding whether it should be granted. The District Court would, no doubt, take care in that regard. It is not necessary to determine finally whether that purpose would be relevant in deciding the unreasonableness of the disclosure. But a party who sought and used information merely for that purpose would perhaps invite action, as for nuisance: cf J Lyons & Sons v Wilkins [1899] 1 Ch 255; Hunt v Broome [1974] AC 587; or (if pursued through the courts) for abuse of process: cf Williams v Spautz (1992) 174 CLR 509. And a legal practitioner who lent his aid to an application for the purpose only of harassment or the like would require to consider his professional position: cf Clyne v New South Wales Bar Association (1960) 104 CLR 186".
42 This is with respect a fairly tenuous basis by itself, and without evidence, to have an action summarily dismissed in the way the applicant/defendant seeks it. His Honour was talking about something raised in argument going to the determination of whether a disclosure is "unreasonable" founded upon the purpose therefor. Some information as to purpose clearly would have to be given if a conclusion was to be reached that it was to harass and thus that disclosure would be unreasonable. If the District Court, having taking the care to which his Honour refers, came to the view that the disclosure was not unreasonable in light of some information presumably as to purpose, arguably it would be a substantial leap from that point to assert that an ultimate use of disclosed material to found a defamation action was an abuse of process. This basis is not available to the applicant/defendant.
43 Accordingly I am not persuaded that there is any basis for me to exercise the relevant power under Pt 13 r 5.
44 The formal orders are: