News Corp Ltd & ors v National Companies and Securities Commission [1984] FCA 446

Federal Court of Australia|1984-12-17|Before: Beaumont JJ, Fox J

ON APPEAL from the General Administrative Division of the

THE NEWS CORPORATION LIMITED, MIRROR NEWSPAPERS LIMITED,

NATIONWIDE NEWS PTY. LIMITED and CONTROL INVESTMENTS PTY.

to produce certain documents. Notice of the intended inquiry was

published a few weeks later. The applicants other than the first applicant are subsidiaries or associates of the first applicant. Shortly after the s.12 notice was received, the applicants served on the respondent under s.15 of the Freedom of Information Act 1982 ("the Act") what were called "reverse notices", being in closely similar terms to the notice served, but of course relating to documents from whatever source, and applving also to internal memoranda, etc. of the Commission. The Commission is an "agency" within the meaning of the Act. The hearina commenced on 19° April 1983, but the applicants made legal challenses which meant that the proceedings were adjourned and did not recommence vntil on or about 17 Julv 1984. As I understand, thev are still

documents in reliance (so far as presentiv relevant) upon

"37. (1) A document 1s an exempt document 1£f its disclosure under this Act would, or could reasonably be expected to -

(a) prejudice the conduct of an investiqation of a breach, or possible breach, of the law. ora failure, or possible failure. to comply with a law relating to taxation or preiudice the enforcement or proper administration of the law 1n a particular instance",

This decision was taken for reviaw to the Administrative

Appeals Tribunal (s.55(1)(a) of the Act). The Tribunal held that

3.37(1)(al was applicable, and the decision of the Commission was affirmed. Over six anda half thousand documents were involved. and for the purposes of the hearing before ut. directions were given bv the Tribunal which resulted in schedules béinad prepared, and presented. setting out lists of the documents soudht to be exempted. a short description of Fhe centents of each sufficient

fo provide a prima facie wistification for the ground ar teounds

of exemption relied on, and a statement of the provision oft the

Act relied upon to support the claim for axemprian. Counsel for the present applicants sought access ta the schedules. and ir was refused. Access was of course noh qiven fa the deeumenrs ta which the lists related. The case before rhe Tertktiinal and Fefore 13 was araued on a substantive basis, acceshing that possihbi- a very few of the documents mighn not be exempt, and char a faw ot rhem most probably were. There was some coral evidence siren in the absence of the applicants. The applicants inderstandabiv

submit that they were at a disadvantage in challenging the claim

Administrative Appeals Tribunal Act 1975 t"the A,A,T. Act"),

"35, 01) Subiect ta rhis section, the hearing of 4 proceeding before the Tribunal shall be in publi.

(2) Where the Tribunal 15 sanisfied that ir is desirable fo da so by reason of the confidential nariuve of anv evidence or matter or for any other reason, the Tribunal mav, by order -

shall take place in private and qive directions as to the persons who may be present:

(b) qive directions prohibiting or restricting the publication of evidence qdiven before the Tribunal. whether ain public or in private, oar of matters contained in documents Inided with the Tribunal or received in evidence by the Tribunal: and

(@) aive directions prohibiting or restrictind rhe disclosure to some or all of the parties taa proceeding of evidence qiven before rhe Tribunal, or of the contents of a dociment lodged with the Tribunal or received in evidence by the Tribunal. in relation co the proceedina.

(a) whether the hearing of a proceeding should be held in private: or

(pb) whether publication. or disclosure to some or all of the parties. of evidence aiven before the Tribunal. or of a matter contained ina document lodged with the Tribunal or receatrad in evidence bv the Tribunal, shoula be prohibited or restricted,

the Tribunal shall fake as the basis of ois consideration the principle that it is desirable thar hearings of proceedings before the Tribunal should be held in public and that evidence aiven before rhe Tribunal and rhe centents of dnecuments Lodged witn the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pav due regard to any reasons given to the Tribunal why the hearing should be held in privare or why publication or disclosure of the ewidence or the matter contained in the document should be prohibited

There igs in the appeal papers a sample of the schedules.

some omissions, relating to about one hundred decuments,

which was made available to the applicanrs at the hearing before the Tribunal. There 1s affidavit evidence aivyind a qaneral classification of the contents of each of the thirty-nine cardboard volumes in which the documents are, and a further broad description, qenerallv by nature of contents but sometimes bv origin, of groups of the volumes, Two of the volumes were described as having been produced bv che applicants to the N.C.5.C. (the s.12 notices were apparently complied with, at least in part) but the original application did not relate ro them. For one reason and another. the claim to access was not

The Tribunal dealt first, 1n separate reascns, with the

application of 5.35. It then dealt further, and finally, with

The affidavit of Mr. Schoer. Executive Director of che

Commission. states some grounds for the exemption claimed. and it

is useful to set out the more significant of them so far as

"20. In my opinion, the release of the documents. the subject of this application (now sought bv rhe Applicants), will anterfere with the investigation of the matters referred tn earlier. These documents, all of which were obtained or produced for the purposes of the investigation, are soudht by those whose conduct 1s being investigated with A view to seeing whether they hreached Fhe celevant law. A disclosure of these documents will have the obvinus effect of "tipping the hand" of the NCSC, a matter of particular relevance in the context of the hearing referred to earlier as

well as any prosecutions that mav issue against the Applicants as a result of the investigation. This will also prejudice the enforcement bv the NCSC of the securities and companv law in general and section 11 of the Acquisition of Shares Act, and sections 137 and 138 of the Companies Act in particular. Further. 1¢ will also preiudice the administration of the relevant leaislation bv the NCSC in general and in particular. in relation to

If the documents of rhe tvne in question are released to a person tinder investidaation. he will be in a position to mislead or divert the investigation either bv bv tabricating defences, setting false trails and seeking to influence witnesses. The problems are particularly acute with respect to transactions in securities because of the multiplicitv of persons and transactions

information 1s obtained from parties other than those under investiaation,. which usuallv takes the form of documents or 1s reduced to writing. If such information 1s made available to a person under investidqation. in my opinion and (for the reasons qiven 2arlier, the information will no longer be readilv available roa the NCSC therebv inhibiting 1ts abilitv to administer the relevant legislation and investigate breaches of it.

The release to the Applicants of the documentary material sought by them before the conclusion of this investigation will preiudice the conduct of that investiqaation in that 1t will indicate to the Applicants:

(a) the commercial activities of the Applicants and others which are the subiect of the investiaation;:

(d) the reliance placed upon or emphasis which has been qiven bv the NCSC to particular items or evidence or information:

'fs methods of surveillance bv rhe Nese ak FYANSACTIONs tinder investigaticn unicluding those in question;

'ai the disclosure at priorities at rt investiaation:

The grounds taken in the notice of anyeal are that the Tribunal erred in 1ts constriction of s.37(1lita) of the Act, that 1t did not. in the hearing before 1°, Tompivy with che terinciples oft natural austics, that it failed to compiy with s.39 of the

BAT. Act: that the exercise of Lbs wiscretion under $.75 of

that Act miscarried: chat rhe exercise af if5 dr3acretion under arounds related to evidentiary matters, which 11 13 unnecassar7

counsel for the respondent submits tnac there 1s only

one question properly before the Toure, ana crnat is whether the

quriesdiction to this Court to hear apneals, on questions of law,

from "any decision" of the Tribunal. Counsel, in reliance upon

Director-General of Seocial Services v. Chanev (13520) ?1AL.F.

S71. arques that "decision" means final vwetermination, and

8.35 by the Tribunal. 15 not properly the subvect of the appeal.

The present application. unlike that in Chanev, 15 brought after the Tribunal has made its final order or decision, and relates to that order or decision. It is I think conceded that appeals (so-called) under the A.A.T, Act cannot be taken trom interlocutory decisions of the Tribtinal unless the earlier decision affects the final order, andan error of law results

In the present case, 1t 18 said that there was, in the conduct of the Tribunal's review, a denial of natural justice which could well have affected the result. It 1s accepted that denial of natural justice constitutes an error of law. The decision would presumablv be reviewable on that around in this Court under s.39B of the Judiciary Act 1903 and, if the ground were made out. a prerogative writ could 1ssue to the Tribunal. I think that an appeal on that ground can also be brought inder tne A.A.T. Act. The matter in fact arises here ina ie slichtiv different way. The Tribunal acted in reliance on 8.3512) of tne last-mentioned Act and 14 1s the correctness of its understanding of that sub-section which is under challenge. The claim respecting natural justice has been tied specifically to rbe construction of this sub-section. Tn rhe lanaquatve of counsel far the applicants. "1f there was a valid 3.35 arder rhen rhe natural

qustice question of law does not run". T do not imderstand this

to involve a separate araument that there was an absence of

Natural justice in the application of 5.35, accepring that 1b was properly construed. but such a cantention conld not in my view be

It is convenient to turn first to the application of

s.37(1)(a) of the Freedom of Information Act. The decision bv

the respondent that the paragraph applied is not of ecmirse conclusive. The question 1t poses 1s to be examined objectiveiv, but inthe light of the evidence. I aqree that 1t 1s not sufficient that there be a mere risk of pretudice to the conduct of an investigation. TI would not, however, seek to supply some paraphrase of the statutory lanquage "could reasonably be expected to preiudice". There 18 no doubt that an investiqgatinn was being carried out (and still is) and that ait was an investigation of the kind referred to in para. +a. It does nor seem tome Ffhat the Tribunal misconcetved rhe meaning of the lanquaqe in question, and there was ample evidence to enable ir fo reach the conclusion wt did. Tr was submitted that the (disclosed) evidence dealt with documents by broad categories. and separately with the nature of preiudice, without Linking the two. This 1s not entirely accurate, but in anv event, wut was open to the Tribunal to associate the two, as a matter of judgment and qood sense. The matter went further. of course, because the Tribunal saw individual descriptions of the documents. In relation to many of the documents, 1t would I think take very little evidence to austify a conclusion of Cc

reasonable expectation of pretdudice. The Courts decided Lond

aqo, one imaqines with little or no actual evidence of possible prejudice to a fair trial, that an accused should noc be entitled to discoverv as against the prosecution. What 1s sought here 1s

In dealing with a submission that a document 1s exempt, as with claims of confidentiality or privileqde, a revievind tribunal, in the absence of a provision such as 5,35'2) of the R.A.T. Act. would [T think be bound to adopt some practical course. at least on an interim basis. whereby a right to access could be determined without giving access. In frhe end. a claim fd exemption mav have to be determined. without the applicanr having access to all the material which the tribunal has and without havina access to the documents or a schedule describing them. Much would turn on the circumstances of the case. This is, however. hypothetical because there 1s in the A.A.T. Ack not only s.35(2). but s.35(1) and 5.39, and there are also secns. 463 and 64 of the Freedom of Information Act.

A course often followed in litigation is for acces3 Tra

be avranted to counsel, on the footing that he. or he and his solicitor. are the onlv persons to see a doc iment. It isa convenient but dangerous practice, as it involves the withholding from a client bv his legal representative of information relevant to the litigation. The acceptance of such a course would not. I

imagine. be within the ordinary rerainer of counsel. and would as

a rule need specific instructions. Counsel relieitipon the

practice. as part of his arqument. and submitted that the Tribunal had erred in not following 1t. An application to Ene effect mentioned had been made to the Tribunal. but was rejected by 1t. In the light of the statutorv provisions, T doubt whether the Tribunal had power to act in anv such wav, but if would in anv event be a matter for its discretion. and its failure to exercise the discretion in favour of the applicant is not a matter which would by itself involve an appealable error of law.

I should add in this regard that the submission of the applicants

depended at several points in drawing a distinction between "party" and the legal representative of a party, when considering the statutory language, but in mv opinion the distinction is not

The actual decision of the Tribunal was "thar the decision of Raymond John Schoer 9 which th2 application far review relates he affirmed". This decision was made on reriew under s.54 of the Act, and access to the documents was thereby denied. In my view the Tribunal did not err in law in its

There were grounds relied upon in addition «a s.371\1)(a), but, by agreement, the present application has been treated as a challenge only to reliance on 3$.37/1)(a), on the footing that 1f the challenge succeeds, the application of otner sections of the Act can be dealt with bv the Tribunal and, if

Section 35(2) of the A.A.T. Act 1s conditioned bv the state of satisfaction of the Tribunal. It seems plain, and must have been the intent of s.63(1), that sub-s. (2) applies. among other situations. to the maintenance of privacv in relation to an exempt document. To that end it can exercise the powers in that sub-section (see also s.64(1) of the Act). The particular documents to which access was sought were the schedules produced

by wav of evidence before the Tribunal. for they contained a

description of the documents. one ov one. It 15 apparent from the evidence that to disclose the schedules would disclase the existence of the documents. and their nature, would ao a lona wav

towards aqiving access to them icf. 3.4 Y of the Act) and might well convey to the applicants, in ralation to most documents, all they wished ta know. It 15 not necessarv to consiier wherher the

scnedules became exempt documents themselves (see 3.25111).

IT am of the view that $.35(21 provided a power which was available to be used, and am not satisfied that there was anv error of law affecting its exercise. Section 32, which WAS relied on. 15 expressly made subiect to 5.35. The claim based on

It mav be that a companv whose dealings are the subject of an inquiry by the N.C.S.C. should freely have access to all documents in the possession of the Commission for the purposes of that inquiry. This has not been the policy. and T do not snavest

it should be. What has happened here is rhat a company which nas

been fullv informed of the purposes of the inquirv, and knows in detail the documents sought from it, has attempted to obtain from the Commission access to all similar documents in the possession of the Commission, from whatever source. Tr has not for this purpose used the power available under the leqislation qoverning

the inquirv, but has resorted to the Freedom of Informarion Act.

It seems to me that 1t 15 virtually a foredone canclusion that access to the documents it seeks will be denied. A claim to denial of natural Justice seems quite unreal in these circumstances. So far as concerns fairness to the parties, the Administrative Appeals Tribunal will so act as to prevent the accepted principle of mnon-access beina whittled awav, more especially when the application has all the appearance of a comprehensive fishina expedition, ilkely in the aummediate and

ultimate conseauences to hinder rather than help the unquirv.

In my opinion the application should be dismissed, with

costs. was i 'I eartify t at tars aril t4a Fw¢clvz (2)
| ace suePmt sa 2 wll eB eoLty of Tad |{ ascas % z Voncuz ! sosoas for dual isnt bee tee vs aos LIKUD f : 2 : iNv. Justice FO' 4 .

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL

THE NEWS CORPORATION LIMITED, MIRROR NEWSPAPERS LIMITED,

In this matter I have had the advantage of reading the

draft reasons for judgment of Beaumont J. His Honour has set out

the somewhat tangled history of this matter and I shall not repeat

It 18 suffic1rent for my purposes to say that the appeal is brought by the applicants, the News Corporation Limited and

other related companies, pursuant to 8s.44(1) of the Administrative

Appeals Tribunal Act 1975 ('the AAT Act') which enables a party to a proceeding before the Administrative Appeals Tribunal ('the

AAT') to appeal to this Court, on a question of law, from any

The applicants had applied to the AAT, pursuant to 93.55 of the Freedom of Information Act 1982 «'the FOI Act') for review of a decision of the respondent refusing to grant the applicants access to certain documents. The AAT decided that the respondent's decision should be affirmed, and 1t is that decision

of the AAT which is the subject of the present appeal.

The respondent is conducting an inquiry to determine

whether 1t should take any action against the applicants and others for possible breaches of the law relating to company

takeovers and the acquisition of shares in public companies. The particular issues involved relate to the acquisition of shares in Thomas Nationwide Transport Limited ('TNT') by the applicants and

other companies or persons who may be associated with the

The applicants have, in effect, sought access under the FOI Act, to all the documents so far obtained by the respondent, from a wide variety of sources, in the course or 1ts inquiry,

together with any summaries, analyses or other memoranda it may

. have created itseif. These documents number over 60U0 and have been categorised by the respondent in the tollowing terms: "(1) Documents produced by stockbrokers - volumes 17,19,20,23,24,25 - which relate to the share

(i) contract notes which invoice a broker s client for securities bought or sold;

(ii) settlement notes which record payments to brokers by their clients on contract

(i111) client ledgers or account reconciliation sheets which include name of client, the date of

transaction, the securities bought or sold, the volume and the price;

(iv) buy and seil orders which record clients' instructions;

(v) scrip ledgers or stock book cards which record the movement or share certificates in and out of the broker's office;

communications between brokers, their staff and third persons;

(vii) copies ot correspondence, telex and file notes which relate to clients' transactions and clients' business and

dealings between brokers in respect of the same matters.

(2) Documents produced by the Applicants - volumes 11 and 12.

(3) Documents produced by persons and companies other than the Applicants (other than stockbrokers)

volumes 1-10, 13-18, 21, 22 which relate to the share dealings under investigation, being:

iv) schedules of transactions in company securities;

(vii) internal file notes, memoranda re takeover strategy of public company by another public company;

(1x) share transter forms; (x) draft takeover documents; (x1) schedule setting out interests of

certain directors in various companies; (x1i) relevant board minutes.

information prepared by NCSC officers - volumes 26 and 27.

of the NCSC relating to TNT including memoranda to and from the NCSC, copies and

Applicants and others including the Attorney's-General, stockbrokers, etc., all of

deliberative process in connection with the investigation - volumes 29 to 31.

(7) Brief to Counsel for hearing - volumes 32 and 33.

(8) Analyses of shareholdings, trading and like matters prepared by officers otf the NCSC in connection with the investigation - volumes 34 to 39."

The applicants seek access to all these categories ot documents except those reterred to in items 2, 4, 5 and 7, that 1s

The applicants know the general nature of most af the documents they are seeking, because they have supplied exactly such documents themselves. They can deduce readily enough that there will also be in existence internal minutes and memoranda of the respondent commenting on and analysing this basic material

It 13 true that the respondent may have other documents in its possession which are covered by some such general description as "confidential memoranda" or "internal memoranda between company officers" and which may come as a surprise to the applicants. No doubt an important reason tor the FOI Act

The applicants have, of course, sought access to all these documents in order to obtain warning of any civil or criminal action which may, in the event, be brought against them. The respondent has resisted the giving of access for the obverse reason that, if the applicants receive such advance warning, they would then be able to take steps, and might in fact take steps, to hinder or frustrate the further conduct of the inquiry. It must

be remembered, however, that the applicants seek access to the documents as members of the public. They claim no greater right than a journalist could claim. It is assumed, at least in the

circumstances of this application, that access for one 18 access

The matter which is presently betore the Court represents the respondent's second line ot detence. It ultimately failed in a previous attempt to demonstrate that it was not bound by the FOI Act at all. It seeks, in these proceedings, to establish that it is entitled to a virtual blanket exemption from the granting of access in the present case, because s.37(l)(a) of the FOI Act exempts documents the disclosure of which ".... could reasonably be expected to ... prejudice the conduct of an

investigation ot a breach, or possible breach, of the law..."

If this line of defence should fail, there are other possible exemptions on which the respondent will seek to rely, at least in relation to some categories of documents. But the parties have agreed that it is convenient to deal with this

In an effort to secure the orderly handling of the issues involved, the AAT gave directions that the respondent should provide, to the AAT and the applicants, an affidavit annexing a schedule which would list, identify and adequately describe each document for which exemption was claimed "unless to

do so would disclose the matter claimed to be exempt".

In the event, the respondent felt itself unable to comply with this requirement to serve such a schedule on the applicants. Two otficers of the respondent worked for over two months to prepare a schedule of all the relevant documents held by it, but the AAT was asked to order that this schedule be not

disclosed to any persons other than the Tribunal and its staff.

It made this order pursuant to s.35(2) of the AAT Act. The order was later relaxed in some slight measure, with the consent of the respondent, and a small part of the schedule was made available to the applicants. The schedule gave one line to each document,

identifying it by date, general category or type, originator and recipient where appropriate, description or summary of contents

The executive director of the respondent gave evidence

by affidavit of the nature of the respondent's investigation and

the categories of documents which 1t had amassed in the course of its investigation. He explained how such documents could be used by a person under investigation "to mislead or divert the investigation either by fabricating defences, setting false trails and C? or] seeking to influence witnesses". He went on to list the types of information which would be of value to the person being investigated, and exhibited the schedule of documents for which the order of non-disclosure was made. It is appropriate to

"20. In my opinion, the release of the documents, the subject of this application (now sought by the Applicants), will interfere with the investigation of the matters referred to earlier. These documents, all of which were obtained or produced for the purposes of the investigation, are sought by those whose conduct 1s being investigated with a view to seeing whether they breached the relevant law. A disclosure of these documents will have the obvious effect of "tipping the hand" of the NCSC, a matter of particular relevance in the context of the hearing reterred to earlier as well as any prosecutions that may 1ssue against the Applicants as a result of the investigation. This will also prejudice the enforcement by the NCSC of the securities and company law in general and section 11 of the Acquisition of Shares Act, and sections 137

and 138 of the Companies Act in particular. Further, 1t will aiso prejudice the administration of the relevant legislation by the NCSC in general and in particular, in relation to the transactions referred to in paragraph 7 above.

If the documents of the type in question are released to a person under investigation, he will be in a position to misiead or divert the investigation either by fabricating defences, setting false trails and seeking to influence witnesses. The problems are particularly acute with respect to transactions in securities because of the multiplicity of persons and transactions involved.

As I mentioned earlier, in an investigation, information is obtained from parties other than those under investigation, which usually takes the form of documents or 1s reduced to writing. If such information 1s made available to a person under investigation, in my Opinion and for the reasons given earlier, the information will no longer be readily available to the NCSC thereby inhibiting its

ability to administer the relevant legislation and investigate breaches of it.

The release to the Applicants or the documentary material sought by them before the

prejudice the conduct of that investigation in that it will indicate to the Applicants:

(a) the commercial activities of the Applicants and others which are the subject of the investigation;

(b) the activities which are not under investigation;

which has been given by the NCSC to particular items of evidence or information;

(e) the direction of the investigation; (f) methods of surveillance by the NCSC of

transactions under investigation including those in question;

(g) the disclosure of priorities of the investigation;

(i) the hypotheses of the investigation and the methods of investigation."

The deponent was cross-examined at length by counsel for the applicants as to whether 1t would be prejudicial to the investigation to disclose, for instance, the dates of documents or the names of persons exchanging correspondence. He maintained his view that the disclosure of the whole of any of the summaries contained in the schedule or, 1n most cases, of the component parts of those summaries, would be prejudicial. He explained this on the basis that any such piece of information might well constitute a jig-saw piece which the applicants required to

burld a better picture as to how the investigation could affect

them, thus enabling them to take steps to frustrate the

The Tribunal, having studied the schedule for itself, and taken further evidence from the deponent in the absence of the

applicants, accepted his evidence and eventually reached the

Place 1t 1s said that the Tribunal misconstrued the relevant section of the FOI Act, s.37(1)(a), and that, when that section

was properly construed, there was no evidence to support the

finding that the disclosure of documents in this case "could

reasonably be expected to .... prejudice the conduct ot an

Secondly, it is said that the order for non-dasclosure of the schedule was invalid for several reasons and, that being

so, there was a denial of natural justice in failing to make the

"37.¢1) A document 1S an exempt document if its disclosure under this Act would, or could reasonably be expected to -

of a breach, or possible breach, ot the law, or a failure, or possible failure, to comply with a law relating to taxation or prejudice the enforcement or proper

administration of the law in a particular instance ..."

With respect to those who have taken a different view, (Murtagh v FCT 1984 ATC 4516 at 4529), I see no need to read the words "in a particular instance" which conclude paragraph (a) as governing the words "an investigation of a breach, or possible breach, of the law". If they did, they would not addto the existing requirement that a particular breach (or possible breach) must be under investigation, and not breaches of law in the

abstract. However nothing seems to turn on this point in the

The argument for the applicants 1s that the wording of the sub-section requires actual prejudice to be expected, not the

I think there 1s some force in this contention. I think that the words "would, or could reasonably be expected to prejudice" mean more than "would or might prejudice". A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view it 1s reasonable to expect an event to occur if there 1s about an even chance of its happening and, without attempting to suggest words alternative to

those chosen by the draftsman, 1t 1s in that general sense that

The question then arises whether the AAT misdirected itself on this point or misapplied the law to the facts which i1t found. I can find nothing in its reasons to suggest that it misdirected itself as to the test 1t had to apply. It always used the words of the section and nowhere said that a meré possibility

or risk of prejudice would meet the statutory test.

The AAT held that it was sufficient to show prejudice to the conduct, in the sense of the carrying on, of an investigation; it was not necessary to show that the outcome of the investigation would be prejudiced. On this basis it found that the conduct of the investigation would be prejudiced 1f the investigator were

deprived of one of his techniques of inquiry - in effect the

putting of questions to persons who are not thoroughly prepared for them. However 1t went on to say that if it were necessary to show prejudice "in respect of the object of investigation, that 1s the discovery of what happened," that would be satisfied by

investigator of one of the means whereby he would have managed the investigation to find the facts.

Hindsight may sometimes demonstrate that nothing was lost by disclosure of documents to those the investigator was about to question, but not, as we believe, in this case."

In my view this passage from the final page of the AAT's reasons for decision amounts to a clear finding that, in the

present case, disclosure of the documents to the applicants could

reasonably be expected to prejudice the investigation because the applicants would be forewarned and forearmed against questions. The AAT was able to reach this finding even though, as it said, it had no basis for amore positive finding that any person was presently minded to fabricate defences, set false trails or

influence witnesses. Such a possibility, of course, remained

The AAT accepted the evidence of the respondent's executive director that "the more information the applicants had about documents in the Commission's files, the greater the likelihood that there would be frustration" of the investigation. It also accepted his view that "even the apparently meagre information which any one of the lines" of the schedule "would

afford could ... enable an applicant to achieve that frustration".

It was suggested, for the applicants, that it was hardly likely that each of over 6000 documents would prejudice the investigation if disclosed. That is no doubt true, as also is the proposition that the mere presence of a document on an

investigation file does not establish its sensitivity.

However, the AAT studied the summaries of the documents as they appeared in the schedule, and accepted the argument of the respondent that 1t was not possible to identify which pieces might fit into the applicants' jig-saw puzzle. In my view this was a valid argument and, if the Freedom of Information legislation is to remain workable, it must be open to a respondent, and to the AAT, to deal with large numbers of documents with a degree of

I believe there was ample material before the AAT to

In the view of the respondent, this should be the end of the appeal, because the applicants' other basic argument relates to the AAT's interlocutory decision not to disclose the schedule

However, 1n my opinion, 1t 1s open to the applicant in these proceedings to ra1rse an alleged error of law in the conduct of the AAT hearing which could be said to vitiate the hearings. Indeed parties should be discouraged from taking separate proceedings, whether by way of prerogative writ or otherwise, to

challenge an interlocutory decision on a ground which can

conveniently be left to be raised as an issue of law affecting the

final decision - if it still needs to be raised at all when that

At a glance

Court

Decision date

Before

Source

Judgment (502 paragraphs)

Legislation Cited (1)

Cases Cited (3)

Cited By (4)