Freedom of Information Act 1991ss 12, 26 and 40 and Schl cl4, cl9(1) and cl13(a) and (b) and Workers Compensation and Rehabilitation Act 1986 ss 110 and 112. Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1987) 71 ALR 73 at 79-81 and 82; Moorgate Tobacco Co Ltd v Philip Morris Ltd and Anor (No. 2) [1984] HCA 73; (1984-85) 156 CLR 414 and Johns v Australian Securities Commission and Others (1993) 116 ALR 567 at 576-577, applied. Brodbridge and Anor v Stammers (1987) 76 ALR 339 at 341, discussed. Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313; Attorney-General's Department and Anor v Cockcroft [1986] FCA 35; (1986) 64 ALR 97; Re Organon (Australia) Pty Ltd and Department of Community Services and Health : Public Interest Advocacy Centre (party joined) (1987) 13 ALD 588; Salter and Ors v NCSC (1988) 132 ACLR 253 at 256-257; Onus and Anor v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27; R v HM Treasury ex parte Smedley (1985) 1 All ER 589; Re Boehm and Ombudsman (Cth) (1985) 8 ALN N29; Accident Compensation Commission v Groom [1991] VicRp 72; (1991) 2 VR 322 and In re Perqamon Press Ltd (1971) Ch 388, considered.

Solicitors for appellants: Reilly Basheer Downs and Humphries

JUDGE1 KING CJ I would answer the questions in the Case Stated as follows:- 1. Yes. The appellants are within the meaning of s.40 of the Freedom of Information Act persons dissatisfied with the Determination of Workcover dated 20th May 1993.

The Report of T J Sinclair and Associates dated 7th February 1992 is an exempt document pursuant to Clause 13(a) of Schedule 1 to the aforesaid Act.

JUDGE2 BOLLEN J This is a case which we may take to have been referred by a Judge for decisions on questions of law. On some matters which arise it will be necessary to decide whether a question of law has been asked.

2. The questions arise "under" the Freedom of Information Act 1991. The "Case Stated" is:- "1. On the 25th day of December 1991 the second respondent ('Stanley') made a claim against the first respondent ('WorkCover') in respect of alleged injuries sustained by her on the 17th December 1991 in the course of her employment with the Northern Newspapers Pty Limited in Whyalla, South Australia.

2. WorkCover instructed T J Sinclair and Associates, Loss Adjusters of Whyalla ('Loss Adjusters') in the said State, inter alia, to obtain statements from the appellants ('Bray' and 'Smith'), also employees of Northern Newspapers Pty Limited.

3.1 On the 3rd day of February 1992 Mr Jonathan Radford from the Loss Adjusters attended the Northern Newspapers Limited and requested that Bray and Smith provide him with statements relating to their observations of Stanley. 3.2 Mr Radford informed Bray and Smith that they were required to assist him in his investigations pursuant to Section 110 of the Workers Compensation and Rehabilitation Act. 3.3 Bray and Smith understood from Mr Radford that the information given to him was to be given in the strictest confidence and to be used only for the purpose of determining the validity of Stanley's claim for compensation under the Workers Compensation and Rehabilitation Act and that it would not be disclosed at any time to Stanley or to any other person.

On the 7 February 1992, Jonathan Radford of T J Sinclair and Associates reported in writing to WorkCover as to his investigation of Stanley's claim and particularly in respect of discussions held with Bray and Smith.

On the 24 March 1992, Stanley applied to WorkCover for access to documents relating to the claim, including the reports of T J Sinclair and Associates.

Pursuant to Section 26 of the Freedom of Information Act 1991, WorkCover consulted Smith and Bray in writing and obtained their views before releasing any of the documents to which Stanley sought access.

WorkCover made a determination on the 21 April 1992, refusing access to those sections of the reports of the Loss Adjusters that referred to statements made by Bray and Smith.

On 20 May 1992, Stanley filed with WorkCover an application for Internal Review requesting access to the exempted information.

On 3 June 1992 following an internal review of the application by Stanley, WorkCover refused access to the parts of the Loss Adjusters reports that referred to statements made by Bray and Smith.

On 9 July 1992, the Ombudsman, pursuant to Section 39(3)(b) of the Freedom of Information Act, directed that the WorkCover determination of 21 April 1992 was not properly made and directed release of specified sections of the reports of the Loss Adjuster previously exempted by WorkCover.

By letter dated 20 May 1993 to Stanley, WorkCover made a further determination complying with the said direction of the Ombudsman.

By Notice of Appeal dated 2 June 1993 amended pursuant to leave granted by His Honour Judge Roder on Thursday 7th October 1993, the appellants appealed, or alternatively, purported to appeal against the determination referred to in paragraph 11 hereof.

The parties request the Full Court to determine upon this case stated: 13.1 Whether Bray and Smith are within the meaning of Section 40 of the Freedom of Information Act, persons dissatisfied with the determination of WorkCover dated 20th May 1993;

13.2 Whether the reports or parts thereof which refer to Bray and Smith prepared by the Loss Adjusters dated 7 February 1992, are documents exempted from access pursuant to the Freedom of Information Act 1991 on the ground that each such document, or extracts thereof, contains matter: 13.2.1. that relates to an opinion, advice or recommendation obtained prepared or 3 recorded or any consultation or deliberation that has taken place in the course of, or for the purpose of the decision-making function of WorkCover and the disclosure of which would, on balance, be contrary to the public interest; 13.2.2 the disclosure of which would found an action for breach of confidence; and/or 13.2.3 obtained in confidence, the disclosure of which might reasonably be expected to prejudice the future supply of such information to WorkCover and would, on balance, be contrary to the public interest; and/or

13.2.4 which otherwise characterizes it as an exempt document.

The following documents annexed hereto form part of this Case stated: 14.1 Notice of Appeal dated 2 June 1993; 14.2 Amended Notice of Appeal dated 7th October 1993; 14.3 Letter from Ombudsman to WorkCover dated 10 February 1993; 14.4 Letter from WorkCover to Ms M Stanley dated 20 May 1993;

14.5 Report of T J Sinclair and Associates dated 7 February 1992 (sealed)."

The appellants appeal against the determination mentioned in paragraph 11 of the "Case Stated". That was the determination made by WorkCover at the direction of the Ombudsman. The appellants do not want more than a small part of the report of T J Sinclair and Associates disclosed to the second respondent, Michelle Stanley. The second respondent, who appeared for herself before us, submitted that the whole report should be disclosed to her.

The first question asks whether the appellants are persons dissatisfied with the determination of WorkCover made at the direction of the Ombudsman.

The relevant provisions of the Freedom of Information Act have all been followed in the making of the various determinations mentioned in the Case Stated. Now there is in existence a determination with which the appellants are in the ordinary sense of the word dissatisfied. They dislike the determination and its result. They do not want the second respondent to have large parts of the information in the report which information the Ombudsman has, in effect, caused to be released. The appellants claim that the report of T J Sinclair and Associates, which contains a record of information which they gave to Jonathan Radford, is an exempt document within the relevant provisions of the Act and of Schedule 1 of the Act. Their right to have the determination considered depends on whether the appellants are persons who are "dissatisfied with a determination of WorkCover".

Section 40 of the Freedom of Information Act is:- "40. (1) A person - (a) who is dissatisfied with a determination of an agency that is liable to internal review and remains dissatisfied following an internal review; or (b) who is dissatisfied with a determination that is not subject to internal review, may appeal against the determination to a District Court.

(2) On such an appeal the Court may - (a) confirm, vary or reverse the determination to which the appeal relates or remit the subject-matter of the appeal to the agency for further consideration; (b) make such further or other orders (including orders for costs) as the justice of the case may require."

There is no definition of the phrase "person who is dissatisfied" in the Act.

The appellants gave information to Radford under compulsion. Radford told them that they were required to assist him in his investigation by virtue of the provision of section 110 of the Workers Compensation and Rehabilitation Act. It was common ground before us that those provisions did so require. I think that they did.

The appellants were told by Radford that the information was to be given in the strictest confidence. He went on to say what is set out in paragraph 3.3 of the Case Stated.

When the second respondent sought access to the report of T J Sinclair and Associates, WorkCover consulted the appellants to ask what they thought about the releasing of the report. That consultation was done in case s26 of the Freedom of Information Act required it. We may take it that the appellants replied that they thought the report should not be released. Now, despite their wishes and despite the "promise of confidence" the appellants find that, at the behest of the Ombudsman, WorkCover proposes to release much of the information given by the appellants and now appearing in the report. They certainly seem to be entitled to be dissatisfied. It was interesting to find that Ms Branson QC, for the first respondent, (ie for WorkCover) argued that the appellants are persons dissatisfied within s40 of the Freedom of Information Act. Of course, Mr McRae, for the appellants, submitted that they are "persons dissatisfied". Ms Branson went further. Ms Branson said:- "As Mr McRae has made plain, my client is in the slightly curious position, being the respondent to this appeal but being a party who unwillingly made its own determination. It does in fact address the court in support of the case of the appellants and not in support of the case of the second respondent."

I should say that Ms Branson said, too, that WorkCover concedes that it is an agency within the meaning of that term in the Freedom of Information Act.

In my opinion, the argument which Ms Branson put on the issue whether the appellants are dissatisfied persons or not is correct. Ms Branson said:- "I turn then to the issue of whether the appellants are persons dissatisfied with the determination under the Act. It is the first respondent's submission that they are persons dissatisfied. In my submission, if they are fond to be persons who should have been consulted under s.26 because the report dealt with matters affecting them personally, their personal affairs, there could be no argument but that they were persons who were dissatisfied with the determination. If, however, it is found that they are not, the document is not a document affecting their personal affairs, then it is plainly open to argument that they are not persons sufficiently affected by the determination to have a right of appeal. The submission, however, that I put to the court, is that they are persons dissatisfied for the reasons that are listed in paragraph 5.2 of my Outline. They are, in my submission, clearly persons who could be potentially adversely affected by the determination. They are persons to whom a duty of confidence was owed by WorkCover. They are persons, in fact, consulted, although whether or not they ought to have been consulted might depend on the characterisation of the material and, in my submission, they are persons upon whom the determination has a greater effect than the public. Generally, they do have a real interest in having the determination reviewed."

The reasons in para 5.2 of Ms Branson's Outline, to which she refers in those remarks are:- "5.2 The appellants are persons dissatisfied with the determination as - (i) persons adversely affected by the determination; (ii) persons to whom a duty of confidence is owed by WorkCover; (iii) persons consulted by WorkCover before it made its initial determination - albeit not consulted by reason of the terms of Part III Division II of the FOI Act; (iv) persons upon whom the determination has a greater

effect than upon ordinary members of the public - they have a genuine interest in having the determination reviewed."

I think that argument needs no authority to support it. There is no decision as yet on the meaning of "person dissatisfied" in s40 of the Act. I think the matters mentioned by Ms Branson demonstrate that the appellants are persons dissatisfied, persons whom Parliament would wish, in the circumstances, to have a right of appeal.

The expression "person aggrieved" is akin to the expression "persons dissatisfied".

Ms Branson commended to us the "careful analysis" by Gummow J of the expression "persons aggrieved" in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1987) 71 ALR 73 at 79 to 81. After considering authorities His Honour there said (at p81):- "Hence the force of the observations (frequently adopted in this court) by Ellicott J in Toohey's case [1981] FCA 121; (1981) 54 FLR 421 at 437-438; [1981] FCA 121; 36 ALR 64 to the effect that the meaning of 'a person aggrieved' is not encased in any technical rules and that much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public."

The reasoning of Gummow J was adopted by the Full Court of the Federal Court in Broadbridge and Anor v Stammers (1987) 76 ALR 339 at 341. In the joint judgment the Court said:- "In our opinion, the judge correctly overruled the objection to competency. The respondent had an obvious interest in the outcome of the claim for relief which differed from the interests of other citizens. As a practical matter, the closure of the office meant that the respondent lost his position at Watsons Bay and his accommodation there. Whether it was strictly accurate to describe these as 'entitlements' is not to the point. To 8 adopt the language of Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (supra at 82): '...there flows from the decision...a danger and peril to the interests of the (respondent) that is clear and imminent rather than remote, indirect or fanciful, and the (respondent) has an interest in the matter of an intensity and degree well above that of an ordinary member of the public.'"

Ms Branson referred to other authority. In Salter and Ors v NCSC (1988) 13 ACLR 253 at pp256-257 Wallace and Olney JJ each speak of the genuine interest which the relevant person or persons must have in maintaining their application. I note the reference by Ms Branson to Onus and Anor v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27 and to R v H M Treasury; ex parte Smedley (1985) 1 All ER 589. I emphasise the words "interest in the matter of an intensity and degree well above that of the ordinary member of the public" which Gummow J found the applicant had in Re Australian Institute of Marine and Power Engineers v Secretary,Department of Transport (supra at p82). The appellants here have an identical type of interest, something peculiar to them and above any interest of ordinary members of the public.

Put in simple terms they face the prospect of being shown to be "tell tales". That may not sound serious. But it is. If the appeal fails, if things stand as they are, the appellants may find that the story that they gave out information adverse to a fellow worker will get about in the labour market. The appellants will suffer the scorn (at least) of other workers. I think that the appellants have standing as "persons dissatisfied" to institute and maintain this appeal in the course of which these questions have been referred to this Court.

The Court faced an odd situation. We each had a sealed copy of the report of T J Sinclair and Associates. We could not decide whether any part of it was exempt without reading it. Yet we could hardly allow the second respondent, the person who wanted to see the whole report, to see it prior to giving our decision. It is very unattractive to make a decision about information in a document without hearing from all parties concerned. The second respondent could hardly offer an argument about the nature of the information in the document without seeing it. Yet we were constrained to proceed without releasing the document to the second respondent. We could do nothing else.

Section 26 of the Freedom of Information Act is a long section. I will not recite it. It gives some protection about release of information in the case of a document "that contains information concerning the personal affairs of any person".

I have studied the document (the report). It speaks of some adverse effects suffered in the work place by the appellants. But I do not think that the document contains any information about the personal affairs of the appellants. I cannot accept the argument of Mr McRae that things which the appellants said to Radford are matters which concern their personal affairs.

Section 12 of the Freedom of Information Act is:- "A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act."

The expression "in accordance with this Act", includes the idea of restriction or exemption. All this is dealt with in Schedule 1. That Schedule is entitled "Exempt Documents". The Case Stated asks whether the report or any part of it comes within any category of exemption given in that Schedule.

The question asked in paragraph 13.2 of the Case Stated relates to the provisions of clause 9(1) and 13(a) and 13(b) of Schedule 1. Clause 9(1) is:- "9. (1) A document is an exempt document if it contains matter - (a) that relates to - (i) any opinion, advice or recommendation that has been obtained, prepared or recorded; or (ii) any consultation or deliberation that has taken place, in the course of, or for the purpose of, the decision-making functions of the Government, a Minister or an agency; and (b) the disclosure of which would, on balance, be contrary to the public interest.

(2) A document is not an exempt document by virtue of this clause if it merely consists of - (a) matter that appears in an agency's policy document; or (b) factual or statistical material."

I think that all the information in the report comes within clause 9(1)(a). But in relation to (b) I think that the appeal and the reference to this Court is incompetent. Early in the hearing King CJ said:- "I would question whether any weighing in the balance of a matter and exercising a judgment as to whether it is contrary to public interest is really a question of law. It doesn't sound like a question of law to me."

In my opinion, that "weighing" which must occur in considering clause 9(1)(b) of the Schedule to the Act is not 11 a question of law. In the light of the view which I take of the whole matter I do not elaborate. However, should I be wrong on this issue I say that it would not, in my opinion, be, on balance, contrary to the public interest for the whole report to be disclosed to the second respondent. The public interest would not, on balance, be harmed by the disclosing of the report to the second respondent and by her seeing what the appellants had said to Radford. Perhaps she would dislike or be annoyed by some remarks. But that does not make disclosure contrary to the public interest.

In my opinion, we cannot make any finding favourable to the appellants under clause 9 because one leg of it does not raise a question of law. I jump to clause 13(b). I make the same comment as I have made about clause 9(1)(b). Again, there is the question of "contrary to public interest". That is a question of "judgment and discretion" to use the expression of the Chief Justice during argument.

Clause 13(a) gives a different protection. No question of public interest is involved. A document is exempt if it contains matter, the disclosure of which would found an action for breach of confidence.

In my opinion, clause 13(a) of Schedule 1 is the clause which here answers the question of exemption or not. That subclause is:- "13. A document is an exempt document -

(a) if it contains matter the disclosure of which would found an action for breach of confidence;"

The report contains matter which was obtained under the promise of secrecy, under a promise of confidence. The seeker promised to keep the information "given" secret, to treat it as given in confidence. The givers of information relied on that promise. WorkCover has attempted to stand by that promise given by the man who was investigating for it. The Ombudsman has prevented that stand. There certainly has been a breach of the promise. Whether the intervention of the Ombudsman would found any defence to any available action at the instance of the appellants need not concern us here. We do not yet get to that stage. We are to say whether disclosure would found an action for breach of confidence. I read "would" as synonymous with "could". It is an objective test. Ms Branson referred us to a number of cases which do demonstrate the importance which the law gives in some circumstances to the promise to keep information given in confidence secret. These cases were concerned with different facts and different legislation than that which we are considering. But they do offer some general guidance to the importance which I mentioned above and generally. The cases are:- - Murtagh v Federal Commissioner of Taxation [1984] AATA 249; (1984) 54 ALR 313 - Attorney-General's Departmentand Anor v Cockcroft [1986] FCA 35; (1986) 64 ALR 97 - Re Organon (Australia) Pty Ltd and Department of Community Services and Health (1987) 13 ALD 588 - Re Boehm and Ombudsman (Cth) (1985) 8 ALN N.29 - Accident Compensation Commission v Groom [1991] VicRp 72; (1991) 2 VR 322 - In re Pergamon Press Ltd (1971) Ch 388

As I say, those cases are not directly in point. But the case on which Ms Branson relied mainly (as did Mr McRae) is in point on the issue of the existence and nature of "an action for breach of confidence". That case is the High Court case of Johns v ASC and Ors (1993) 116 ALR 567. I will not recite the facts. The greatest assistance in my respectful opinion for us comes from the reasons of Brennan J and from the reasons of Deane J in Moorgate Tobacco Co v Philip Morris Ltd (No 2) [1984] HCA 73; 156 CLR 414. Brennan J cites remarks of Deane J in his reasons in Johns v ASC. At p576-577 Brennan J says:- "The condition of confidentiality Prima facie, it is the privilege of any person who possesses information to keep the information confidential. That person may wish not to disclose it at all or may wish to disseminate it or to authorise its dissemination only for a limited purpose or to a limited class of persons. In Attorney-General v Guardian Newspapers (No 2) (1990) 1 AC 109 at 214 - the Spycatcher case - Bingham LJ said: 'It is a well-settled principle of law that where one party (the confidant) acquires confidential information from or during his service with, or by virtue of his relationship with, another (the confider), in circumstances importing a duty of confidence, the confidant is not ordinarily at liberty to divulge that information to a third party without the consent or against the wishes of the confider.' The jurisdictional basis or bases of this principle may not have been finally determined (116 ALR 567 at 577) but there is certainly jurisdiction in equity to grant relief against actual or threatened abuse of confidential information. In Moorgate Tobacco Co Ltd v Phillip Morris Ltd (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 437-8; [1984] HCA 73; 56 ALR 193 at 208, Deane J said: 'It is unnecessary, for the purposes of the present appeal, to attempt to define the precise scope of the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information not involving any tort or any breach of some express or implied contractual provision, some wider fiduciary duty or some copyright or trade mark right. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39, at 50-2; [1980] HCA 44; 32 ALR 485 at 491-3. Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the 14 circumstances in or through which the information was communicated or obtained.' Deane J was speaking of the exclusive jurisdiction of equity to enforce a duty imposed by equity. The jurisdiction to restrain the repository of a statutory power from using or disclosing information obtained in exercise of the power

cannot rest on the same basis. A duty not to use or disclose information obtained in exercise of a statutory power except

for a purpose authorised by the statute is a duty imposed by statute, not by equity. Yet the equitable remedy of injunction is available in appropriate cases to enforce a statutory duty against a public authority Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557, esp at 575, 581-2; [1973] HCA 34; 1 ALR 241; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; 97 ALR 177. Jurisdiction to grant an injunction, like jurisdiction to make a declaration (Dyson v Attorney-General (1911) 1 KB 410; Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625; 93 ALR 469) is well established - albeit the theoretical foundation of the jurisdiction has not been clearly defined." (Footnote reference to DE SMITH'S JUDICIAL REVIEW OF ADMINISTRATIVE ACTION (4th ed, 1980), ch 9.)

The cases to which Ms Branson referred were cases where information had been obtained for the purposes of the activity carried on pursuant to a statute and under compulsory powers. Here, too, the information was so obtained. The compulsory powers reside in s110 of the Workers Compensation and Rehabilitation Act.

There exists, then, an action for breach of confidence. Moreover, as appears from the remarks both of Brennan J and Deane J to which have referred, there is in existence a jurisdiction in equity to grant relief against abuse or threatened abuse of confidential information. I should say that I do not read the expression "action for breach of confidence" in clause 13(a) as if it were speaking only of an action at law commenced by inter party summons (or in some by writ) seeking damages for the tort of breach of confidence or for breach of contract. The phrase encompasses that type of action. But it encompasses actions or suits in equity, too.

I think then that disclosure of the information would (read as "could") found an action for breach of confidence.

I mention two issues raised by counsel. Ms Branson sought to rely on clause 4 of Schedule 1 and in particular on clause 4(1)(a). I cannot accept this argument. That subclause speaks only of documents which contain matter the disclosure of which could reasonably be expected to prejudice the investigation of any contravention or possible contravention of the law whether generally or in a particular case.

Ms Branson said that the disclosure of information provided by fellow employees of the second respondent could prejudice the investigation of the "workers compensation law generally".

She suggested that the disclosure might prejudice the free flow of information to WorkCover. But that is not a contravention or a possible contravention of the law. All that was being investigated and all that is reported upon is a claim for compensation under the appropriate legislation and facts relating thereto.

Mr McRae referred us to s112 of the Workers Compensation and Rehabilitation Act not by way of relying on it but as something which he thought the Court should note. I do not think that s112 has anything to do with the exempt documents. Section 112 merely imposes obligations on officers of the Corporation and creates offences and penalties for breach.

I may say that I was much impressed by many of the remarks made by the second respondent. She offered forceful submissions to suggest that the appellants would not be harmed if the report were disclosed to her in its entirety. Perhaps she is right. But information was given in confidence. It would be a breach of confidence for it to be revealed. An action at law or in equity for breach of confidence is a cause of action known to the law. The disclosure of the information, ie the breach, could found an action at the suit of the appellants. That being so clause 13(a) applies. The report is an exempt document. I would answer the questions asked thus:- 1. Yes. The appellants are within the meaning of s40 of the Freedom of Information Act persons dissatisfied with the determination of WorkCover dated 20th May 1993.

2. The whole report of T J Sinclair and Associates dated 7th February 1992 is an exempt document pursuant to clause 13(a) of Schedule 1 of the Freedom of Information Act.

JUDGE3 MULLIGHAN J I agree that the questions in the Case Stated should be answered as proposed by the other members of the Court and I agree with the reasons given by Bollen J.