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

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;:

(c) the nature and extent of the evidence which has been accumulated to date in relation to this 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;

(c) the nature and extent of the evidence which has been accumulated to date in relation to this 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

stage is reached. See Director General of Social Services v

Counsel for the applicant conceded that they had to challenge the validity of the order for non-disclosure ot the schedule "in order to get to the natural justice point. If there was a valid order (Cpursuant to s.35(2) of the AAT Act] then the

They challenged the order on a number of grounds, but in my view only two had any substance. The first was that 1t was beyond power because it was expressed in terms which extended to the legal representatives of the applicants in addition to the

Section 37 of the AAT Act requires the lodging with the AAT of all material documents which are relevant to an application for review under that Act. Section 35(2), so far as is relevant,

"Where the Tribunal is satisfied that it 1s desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order -

(c) give directions prohibiting or restricting the disclosure to some of all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding."

I think the reference to 'parties' in s.35(2)(c) must be taken to anclude any persons representing those parties pursuant to s.32 of the Act, which is not confined to lawyers. It would be ridiculous if the Tribunal had power in a proper case to deny access to a company or organization but not to the officer who happened to be representing it. And in my view even lawyers retained for a particular case should not be put in the invidious position of having to conceal important information from their clients, unless the proper trial of anaction admits of no reasonable alternative. However, the reference to "restricting the disclosure" indicates that (among other possible conditions) disclosure may, 1n a proper case, be confined to certain named

Secondly, it was said that the AAT took into account an irrelevant consideration in deciding to make the order for non-disclosure. The irrelevant consideration relied upon was the alleged policy disclosed by ss. 58(2), 63(1) and 64(1) of the FOL Act (see below). It is true that the AAT treated the schedule as a summary of the documents sought under the FOI Act and took the view that it should - possibly as a matter of law, but certainly

as a matter of discretion - extend the same protection to the

summary as 1t was required to give to the documents themselves.

In my view this was the correct approach to the present case, where even such identifying matters as dates and names of correspondents are said to require protection. It would be different 1f those items of information had been of no importance

and the contents of documents could have been summarised in

general terms, while only the detailed contents required protection. But where, as in the present case, the summaries necessarily contain much material which is the subject of the claim for exemption, then I believe the AAT was right to have regard to the sections referred to and exercise its discretion against disclosure of the summaries. I do not find it necessary to decide whether the AAT would have been within its powers 1f it had directed disclosure of the schedule to the applicants or their

Because I believe that the order of non-disclosure under s.35(2) of the AAT Act was validly made, it is not strictly necessary for me to deal with the question of natural justice. This much was conceded by the applicants. However because of the extensive argument addressed to this issue, and out of respect for

the views of Beaumont J, which differ from my own, I believe I

The question is whether the denial to the applicants, and more particularly to their counsel, of access to the bulk of the schedule, constituted a denial of natural justice. At one stage of the hearing before the AAT, counsel offered undertakings that if they and their instructing solicitor were allowed access to the schedule for the purposes of the FOI Act hearing, they would not act for the applicants in any later proceedings which might be brought against their clients under the Companies Act 1981 or the Companies (Acquisition of Shares) Act 1980 or the

Companies Ordinance 1962 of the Australian Capital Territory. The

I should say immediately that I have grave doubts whether the AAT, or this Court, could properly accept any such undertaking. An order to that effect would, I believe, be contrary to the public policy which requires a litigant to be free to be represented by the practitioners of his choice. And 1f such an undertaking could not be enforced, it should not be accepted

(see Thomson Australian Holdings Pty. Gtd. v Trade Practices

Commission (1981) 148 CLR 150). The only undertakings which could be accepted, 1n my view, are those which are normally offered in cases involving trade secrets or otherwise requiring

confidentiality as between litigants but not between lawyers.

However there are more important questions involved in

this 1ssue than the precise nature of counsel's undertaking as to confidentiality. In considering them, I think it 1s vital to bear

in mind the nature of the action and the broad principles involved

The respondent is a statutory authority which has embarked upon an inquiry, in accordance with ats charter, into certain actions of the applicants and others. That inquiry may result in legal action being taken against the appellants or it

If action is taken, then all the protection which the

law affords to persons accused of breaches of statutory provisions will come into play. In particular, requirements of natural

justice will ensure that the applicants will be made fully aware

or the nature of the case being alleged against them and that they

will have a full opportunity to test the accuracy of that case and

At this stage, the applicants are seeking, 1n effect, to "look over the shoulder" of the respondent as it conducts its inquiry. If 1t decides to take no action, this will prove to have been a waste of time. If it decides to take action, the only purpose which the applicants can hope to have achieved by their present application will be to get advance warning of the actual evidence which is avallable to the respondent and may ultimately be used against them. They would then be in a position, should they choose to do so, to tailor their response to questions and, 1f need be, their defence to an action, in order to suit that

They have applied to look over the respondent's shoulder pursuant to the FOI Act, which is designed to advance the principle of open government, in the public interest, subject to @ number of express exceptions which are equally in the public

interest, see News Corporation Ltd. v NCSC (unreported, 1 March

1984. a decision of the Full Court of this Court. For present purposes, one exception recognizes that persons who break the law should be brought to book and that government officers and authorities having that responsibility should not be hindered in

In this case the applicants seek access to thousands of

respondent's decision as to what action it should take, and some

The FOI Act recognizes that there will be many cases in applicant before the AAT cannot be shown the very

to which access is sought. Thus ss.58 (2), 63 and 64(1)

(2) Where, in proceedings under this Act, 1t is established that a document 1s an exempt document, the Tribunal does not have power to decide that access to the document, so far as 1%t contains exempt matter, 18 to be granted."

"63(1) In proceedings under this Part, the Tribunal shall make such order or orders under sub-section

35(2) of the Administrative Appeals Tribunal Act 1975 as 1t thinks necessary having regard to the nature of the proceedings and, in particular, to

the necessity of avoiding the disclosure to the applicant of -

(a) exempt matter contained in a document to which the proceedings relate; or

(b) information of the kind referred ta in sub-section 25(1).

(2) Notwithstanding anything contained in the Administrative Appeals Tribunal Act 1975 -

(a) the Tribunal shall not, in its decision, or reasons for a decision, in a matter arising under this Act, include any matter or information of a kind referred to in sub-section (1); and

(b) the Tribunal may receive evidence, or hear argument, in the absence of the applicant or his representative where it 1s necessary to do

so in order to prevent the disclosure to the applicant of matter or information of a kind referred to in sub-section (1).

Tribunal under this Act in relation to a document that is claimed to be an exempt document, section

does not apply in relation to the document but if the Tribunal is not satisfied, by evidence on

exempt document it may require the document to be produced for inspection by members of the Tribunal

only and if, upon the inspection, the Tribunal 1s satisfied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff of the Tribunal in the course of the performance of his duties as a member of that staff, to have access to the document or

disclosing the contents of the document to any such person."

Since 1t ais clearly open to the AAT to examine the original documents for itself, it must, 1n my view, be equally open to 1t to examine a summary of those documents and order that it be not disclosed to the party seeking access. The relevance of principles of natural justice depends upon the statutory provisions applying to the case. I can see no scope for the application of principles of natural justice in the present case. The application does not involve any personal or proprietary rights of the applicants. They are seeking access to the documents of other companies, government departments and bodies, under a legislative scheme which provides its own entitlements and procedures. Provided the requirements of that legislation are observed - as to which an appeal lies to this Court - there 1s no

need to infer, by way of additional requirement, an obligation to

comply with a set of rules designed to ensure that substantive

rights are not infringed without a proper hearing. As the Haigh

Court has already held in NCSC v News Corporation (1984) 52 ALR

417, principles of natural justice will need to be observed if and when the applicants' officers are summoned to answer questions,

but in my view they do not arise in the present FOI proceedings.

Even if I am wrong in this, and there was an obligation to observe principles of natural justice 1n this case, I do not believe those principles have been infringed. In my view the

applicants had every opportunity to state their case as to why

they should have access to the documents 1n question here. They knew the general nature of the documents concerned and of what they could hope to learn from them if granted access. If they had a meritorious case for access to documents of use to them, they could have explained 1t in appropriate detail. Whatever arguments

might have been put, they could not avoid the fact that

information of real interest to them would almost automatically be exempt from disclosure for the reasons suggested by Mason, Wilson and Dawson JJ in the earlier proceedings between the same parties

"It is of the very nature of an investigation that the investigator proceeds to gather relevant information from as wide a range of sources as possible without the suspect looking over his shoulder all the time to see how the inquiry is going. For an investigator to disclose his hand prematurely will not only alert the suspect to the progress of the investigation but may well close off other sources of inquiry. Of course, there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and for that purpose will disclose the information that appears to require some comment."

I certify that this and the twenty-one (21) preceding pages are a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward

QN APPEAL from the General Administrative Division of the Administrative Appeals Tribunal

BETWEEN: | THE NEWS CORPORATION LIMITED, MIRROR NEWSPAPERS LIMITED, NATIONWIDE NEWS PTY. LIMITED

BEAUMONT, J: By their notice of appeal. brought pur3uant to s.44 of the Administrative Appeals Tribunal Act. 1975

on a question of law, the applicants appeal trom a decision of the Administrative Appeals Tribunal ("the Tribunal") qiven on 39 Auqust 1984 whereby the Tribunal affirmed the decision of the respondent refusing to provide the applicants access to certain documents in the possession of

the respondent pursuant to the Freedom ot Intormation Act,

1982 ("the Act"). The documents were held by the Tribunal to be exempt from disclosure under s.37(1)(a) of the Act

"37. (l) A document is an exempt document if its disclosure under this Act would, or could reasonably be expected to-

(a) prejudice the conduct of an investiaation of a breach, or possible breach, of the law. ora failure. or possible failure, to comply "vith a law relating to taxation

or prejudice the enforcement or proper administration of the law in a particular

The respondent relies on other qrounds for claiming that some at least of the documents in question are exempt under the ict. Since the determination ot the present matter favourably to the applicants will leave outstanding the other claims for exemption. the applicants accept that. even aif the Court were persuaded that the decision under appeal should be set aside, the Court should not order that access now be granted to the applicants. The orders sought by them from the Court are that the decision under appeal be set aside and that the application to the Tribunal for review of the decision of the respondent be remitted to the

The lona history of this matter commences witha notice to produce books dated 2 February 1983, served by the respondent, acting pursuant to 3$.12(2)(ar(4i) of the Companie ct, 1981, and directed to the first applicant to produce to the respondent the books relating to the affairs of the first applicant specified in the notice. The notice

stated that the requirement to produce the books related to

matters, which were then specified, that constitute or may constitute a contravention of s.ll of the Companies

cquisiti of Shares) Act, 1980, 38.137 and 138 of the Companies Act, 1981 and ss.69D and osY%E of the Companies

Urdinance, 1962, (A.C.T.). The matters referred to were:

(1) the acquisitions of shares between 31 October 1981 and 5 October 1982 in Thomas Nationwide Transport Limited ("T.N.T.") by the applicants, Ansett Transport Industries

contravention ot s.ll1 of the Companies (Acquisition of Shares) Act, 1980;

(2) the failure by T.N.T.. the applicants, Ansett and

certain other companies to give a notice in accordance with

33.137 and 138 of the Companies Act, 1981; (3) the failure by T.N.T. and Ansett to aive to T.N.T.

a notice in accordance with ss.69D and 69E of the Companies

By notice dated 17 March 1983, the respondent aave notice that it proposed to hold a hearing pursuant to s.36

ot the National Companies and Securities Commission Act, 1979 in relation to the matters specified in the notice,

being, in essence, the matters described in (1) and (2) above. Althoudh the hearina commenced on the date fixed, 19 April 1983, the manner in which the respondent proposed to conduct the hearing was challenged by the applicants in an application, ultimately unsuccessful, made to the Court for

judicial review of the respondent'3 conduct brouqht pursuant

to the Administrative Decisions (Judicial Review) Act, 1977

(see National Companies and Securities 'ommission v. News corporation Limited '(Full High Court) 615 May 1984) 52 A.L.R. 417).

shortly berore the commencement or the hearing, on 31 March 1983, the applicants made a request to the respondent, pursuant to s.15 of the Act. for access to certain documents in the possession of the respondent. The request, which is appended to these reasons. as appendix 1, adopted, mutatis mutandis. the notice dated 2 February 1983 served by the respondent upon the applicants to which reterence has already been made. Access was denied on the

basis of a number of the arounds for exemption stated in the

Act. By application dated 14 July 1983, the applicants applied to the Tribunal pursuant to s.55 of the Act for review of the decision of the respondent denving access on the basis of the exemptions already mentioned. The decision of the Tribunal in this application for review, at least so far as concerns 3.37(1)(a) of the Act, is challenged in this

The respondent has in its possession more than 6.000 documents which relate to 1ts hearing. Access is not sought to certain of the documents, such as those furnished to the respondent by the applicants themselves and material

Tribunal by order of a Full Federal Court dated 1 March 1984 rejecting another claim by the respondent for exemption based on s.38 of the Act and 3.47 of the National Companies and Securities vVommission Act (see The News vCorporation

Gimited v. National 'Companies and Securities Commission 11984) 1 F.C.R. 64). Atter the remitter, the Tribunal. then

constituted by Deputy President A.N. Hall. for the written reasons 1t delivered on 7 Mav 1984, agave the following

the Tribunal and serve upon the applicants' solicitors not later than the close of business on 6 July 1984, an aftidavit or affidavits annexing a schedule or schedules ot the documents to which the claims for exemption

relate. (iL) The schedule or schedules are to list the documents

sequentially by number and. unless to do 30 would disclose the n e claimed +t be exempt, (emphasis supplied) to provide the following details

(a) the date of the document; (D) the person or persons

by whom the document was created and, where applicable, the person or persons to whom it was directed;

\c) a gufficient des- cription of the nature of the contents of the document so as to provide a prima facie justification tor the ground or grounds of exemption relied upon;

2. In respect of documents in relation to which the respondent claims that the

disclosure of anv information of the kind referred to above would be to disclose the matter claimed to be exempt. a separate schedule of documents 13. to be prepared and lodged with the Tribunal on or before the close of business on 6 July 1984, clearly identified as for the information of the Tribunal only."

In his reasons for the directions, Deputy President

"My experience in hearing FOIL applications involving even relatively 3mall numbers of documents (up to 100) convinces me of the desirability of the agency concerned preparing a proper affidavit and supporting schedule of documents (consistently with not disclosing the very material said to be

exempt) in advance of the hearing so as to allow adequate opportunity for consideration by the applicant of that affidavit and schedule and, if

appropriate, for conferral between the parties as to ways of limiting the time

by identifying categories of similiar documents of which one such document can

be aqreed as representative of a class of documents). {ft 1s. I believe, in everyone's interests that such

procedures should be trollowei in the present case."

Unfortunately. despite this explanation, the respondent .found itself unable to comply with either the letter or the spirit of the directions. The respondent filed and served an affidavit sworn by its executive director. Mr. R.J. Schoer, in which he identified, but only in aqeneral way. the documents for which exemption 18 asserted. Mr. Schoer also advanced reasons and arguments in support of the claims from exemption based on s.3/7(1l)ia) and other provisions of the Act. In identifying the subtect

"16. The documents referred to earlier, not all of which are the subject of the request herein or of this Application are held in 33 separate cardboard volumes and 6 separate plastic volumes. The cardboard volumes bear the numbers 1

to 33 and the plastic volumes, bear the numbers 34 to 39. The confidential documents now produced and shown to me and marked with the letters CV1l to CVv33 and PY1l to PV6 are schedules, each of which 1s an index of all the documents

plastic volume. The production of these schedules and the volumes involved the collation of in excess of 6500 documents and took up the time of two officers of the NCSC for a period exceeding two months.

17. Within each cardboard volume documents are placed either individually or, where appropriate, grouped into plastic sachets. The schedules exhibited hereto contain an index of each of the documents in each of the volumes showing (1) the number aiven to the document or sachet ot documents (where a number is followed by a further number in parenthesis, the reterence 15 to a sachet containing a sroup of documents with the numbers in parenthesis being the number of each individual document within the sachet), (2) the date on which the document was created: (3) the person by whom it was created; (4) the person to whom it was directed; (5) a short description of the contents ot the document and (6) a statement of the arounds of exemption contained in the relevant sections as originally claimed by me upon review of the oridinal decision to denv the Applicants access to the documents. ..."

Mr. sSchoer then described, but only in the most general terms, the contents ot each cardboard volume. To

take two random examples to illustrate the method employed,

the relevant index): Documents produced to the NCSC by a stockbroker under notice from the NCSC."

"Volume 29, (for which Exhibit Cv29 is the relevant index): Part one of the NCSC's internal file concerning TNT."

The crux of the case for exemption under s.37(1)(a)

respondent's failure to carry out Deputy President Hall's

directions, were expressed by Mr. Schoer as follows:

"20. In my opinion, the release of the documents, the subiect of this application (now soudht by the

Applicants), will aintertere «ith the investigation of the matters reterred to earlier. These documents. all of which were obtained or produced tor the purposes or the investigation. are sought by those whose conduct 13 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 or particular relevance inthe context of the hearing referred to earlier as well as any prosecutions that may issue against the Applicants as a result or the investigation. This will also prejudice the enforcement by the NCSC of the securities and company law in qgeneral and section ll of the Acquisition of Shares Act, and sections 137 and 138 of the Companies Act in particular. Further, it will also prejudice the administration of the relevant legislation by the NCSC in general and in particular, in relation to the transaction3a referred to in paragraph 7 above.

al. If the documents of the type in question are released to a person under investigation, he will be ina position to mislead 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 or persons and transactions involved."

The respondent served a copy of Mr. Schoer's atfidavit upon the applicants but, notwithstanding Deputy President Hall's direction to that effect, none of the exhibits to the affidavit was served upon the applicants. Thus, no schedules of the kind mentioned in para.i(11) of the directions were served upon the applicant3. counsel for the applicants complained about the respondent's failure to comply with the directions at the commencement otf the hearing before the Tribunal. In response to this complaint and some observations on the point by Mr. G.D. Grant. one ot the members ot the Tribunal. counsel for the respondent

"MR. CHERNOV: f{ take up the matter ... and that was principally to do with Mr Grant's observations about the order made by Mr Hall aqiving directions. ... really the directions order can be broken up into two parts, broadly speaking. Whether one calls what was ordered schedules or summaries really does not matter, from one point of view. In essence. what was ordered was that two sorts of documents be produced; one which virtually summarized the documents. and that 1s to be seen by the

tribunal, and another set of documents giving another sort of description of the documents, without revealing exempt matter, which perhaps could be given to the other side. to the applicants. If that be the correct division of documents contemplated by the order, then as to the first cateqory, in our submission, that has been done in the form of the schedules which are exhibits to Mr Schoer's affidavit.

{t is our submission that these documents - that is to say, those schedules - are to ao only to the tribunal and no further. and in relation to those we witl be seeking a section 35(2) order. As to the second category of documents or schedules contemplated by the order of Mr Hall, it may well be that strict compliance with that order has not yet been achieved, although we would submit that in substance that part of the order has been complied with insofar as the affidavit reveals with gome particularity the sort of documents that are held by the commission in respect of which exemption i3 ciaimed.

MR. GRANT: If you read the earlier part of Mr Hall's direction, dated 7 May, it seems to me to make 1t quite clear that he intended that what was to ado to the applicant simultaneously by © July was an atfidavit together with schedules of the documents. and he later on describes the nature of the contents of the schedules. If in fact the commission has the view that you are now advancind, would it not have been appropriate to take up his direction, where he later on talked about either party being at liberty to apply for a directions hearing and to arque the point you are now arquing shortly after 7 May. rather than raise it today?

MR. CHERNOV: With qreat respect, you may be richt, but I regret to say in

this imperfect world the work to produce those schedules continued until about the middle of last week, and they were

just not ready until about the middle of last week. When our friend said to the tribunal that they act the affidavit-at stumps, he got it at stumps because work

was continuing around the clock to have that affidavit ready. With qreat

respect, I was going to take your point that it might be that that was the time to raise it, but we are submitting the

was carried out, in our s3ubmission, in the sense that a schedule was produced which gives the tribunal the documents

or the description ot the documents, to enable it to determine whether or not

the documents were exempt. In our submission, the affidavit sets out ina meaninatul wav the categorization of the documents.

Une of the ditticulties of havindg done 1t in any other way would have been just

to see how useful a document could have been produced which could not identify the originator of the document, other than by way of a general description, as distinct from the way it has been

The reference by counsel to an application under 3.35(2) was a rererence to an application by the respondent in respect of the schedules, which had been lodged with the

Tribunaj but not then tendered, made under s.35(2) of the

Administrative Appeajs Tribunal Act. By 3.435(1), subject to

the section, the hearing of a proceeding before the Tribunal

shall be in public. By 3.35(2), where the Tribunal is gatisfied that it 1s desirable to do 30 by reason of the confidential nature cot anv evidence or matter or for anv

other reason, the Tribunal may - by order direct that a

hearing or part of a hearing shall take place in private and

give directions as to the persons who may be present: give directions prohibiting or restricting the publication of evidence given before the Tribunal. whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and give directions prohibiting or restricting the disclosure to

some or all of the parties to a proceeding of evidence qiven

before the Tribunal, or of the contents of a document lodged

with the Tribunal or received in evidence by the Tribunal,

By s.35(3), in considering whether orders should be

made under s.35(2). the Tribunal shall take as the basis of

"the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence qiven before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted."

Sections 36 and 39 of the Administrative Appeals Tribunal Act, are also material for present purposes. By

5.36, certain documents and information are not required to

be disclosed if the Attorney-General certities that

disclosure would be contrary to the public interest by reason that it would pretudice the security. defence or international relations of Australia: or by reason that 1t _would involve the disclosure of deliberations or decisions ot the Cabinet or of a Committee ot the Cabinet; or for any other reason specified in the certificate that could form the basis for a claim by the Crom in right ot the Commonwealth in a judicial proceeding that the information

or the matter contained 1n the document should not be

By 3.39 of the Administrative Appeals Tribunal Act,

subtect to ss.35 and 36. the Tribunal shall ensure that every party to a proceeding before the Tribunal 1s given a reasonable opportunity to present his case and, in particular, to inspect any documents to which the Tribunal proposes to have reaqard in reaching a decision in the proceeding and to make submissions in relation to those

form of six columns aqiving the information described in

paragraph 17 of Mr. Schoer s atfidavit. supra. During the hearing before the Tribunal, counsel for the applicants indicated that. although he didnot press for immediate access to the fifth column of the schedules, being the

description of the document in each case, he did seek access

to the remaining five columns in the schedules. Counsel for the respondent then sought to tender Mr. Schoer's affidavit and the schedules exhibited to the affidavit but renewed his application under 3$.35(2) of the Administrative Appeals Tribunal Act that the schedules not be disclosed to the applicants or any other person other than members of the Tribunal and Tribunal staff. The learned judae presiding at the hearing then said that "until further order the schedules-the exhibits-are not to be disclosed to any person other than the members of the Tribunal and members of the

Counsel for the applicants next indicated that he wished to cross-examine Mr. Schoer and make submissions on the question whether any order should be made under s.35(2) prohibiting disclosure of material to the applicants and their advisers. Mr. Schoer was called. In his evidence in

"What do you say as to whether disclosure of the schedules would disclose any matters in relation to which you claim exemption in the documents?---Well, the purpose of the schedule is to summarise the main point of the document to help the tribunal decide whether it is exempt matter, so I would claim that disclosure ot the schedules would have the same effect as disclosure of the documents themselves."

"(HIS HONOUR): Mr. Schoer., of the 6v00 odd documents. would you be able - I do not mean off the top ot your head but artter looking into these schedules - to select from among them a document of the commission which best expounds what contraventions of the law the commission

suspects may have been committed, and by whom, and what further information or other material the commission thinks it will need in order to resolve for itself whether or not any contraventions of the law have occurred, and it 30, what they are?---Yes, your Honour.

Then we propose to call tor that document and have 1t produced to us. When I say that document. we are not concerned about aqetting the actual original; a photostat copy will be sufficient tor our purposes. Do you have anything to say against that. Mr. Chernov?

MR. CHERNOV: No. I would be interested to see what document it is. When your Honour says one document. does the tribunal literally mean one document or can it be a number?

HIS HONOUR: Not necessarily number one but for practical reasons we would not want a whole swaq of documents; one or two or three. I appreciate your point that 1t may not clearly appear in one, but it occurred to me that it perhaps may. At any rate, there may be one or two.

MR. CHERNOV: ... L think we have been able to come up with a document of the sort that the tribunal will tind of assistance. There is one matter to which I would like to refer your Honour, at the expense of sounding pedantic about it. The document has been extracted. It is for the tribunal's information described in volume 32, which the tribunal may recall is a schedule pertaining to a volume in relation to which our learned triends make no claim because of the leaal protessional privilege point involved, but nevertheless it is the second document on page 1. '(In Mr. Shoer s affidavit, volume 32 is described as "part one or the NCSC's brief to counsel

for the TNT hearing".» We produce that ... under section 14 of

having been made available under section 1d. I regard it as having been made available pursuant to section »64(1). I

did not use the lanaquage of requirement, which is the language ot section 64, but that was the power we conceived

curselves to be exercising when we called tor it. ..."

(Section 14 provides that nothing in the Act is intended to prevent or discourage Ministers and agencies from publishing or qiving access to documents (including exempt documents), otherwise than as required thereby, where they can properly do so or are required by law to do so. on the other hand. 3.64(1) provides that where there are proceedings before the Tribunal under the Act in relation to

a document that is claimed to be an exempt document. but the

Tribunal is not satisfied, by evidence on affidavit or otherwise, that the document 1s an exempt document, it may require the document to be produced for inspection by members ot the Tribunal only, and if. upon the inspection. the Tribunal 1s satistied that the document is an exempt document, the Tribunal shall return the document to the person by whom it was produced without permitting any person other than a member of the Tribunal as constituted for the purposes of the proceeding, or a member of the staff or the Tribunal in the course of the performance of his duties as a member of that staft, to have access to the document or

disclosing the contents of the document to any such person.)

applicants not only in the application under s.35(2) of the

Administrative Appeals Tribunal Act but also in connection

with the substantive matters arising in the application for review itselt. During the course of this cross-examination,.

",.. I might point out I have not tinished my substantive cross- examination but [ have finished for the purpose of that application (i.e. under 3.3512) of the Administrative Appeals Tribunal Act) and I have indicated to my friend I would adopt this procedure and I believe he might want to re-examine in

the context of the application that I propose to make, but perhaps I should first make it. It is this. that we have access to the whole or alternatively

part of the material appearing in the schedules, specifically the whole of

columns 1, 2, 3, 4 and 6 and so much of column 5 as constitutes - and I am here quoting from Mr Hall's order (1)(11)(c)

as constitutes a sufticient description of the nature of the contents of the document 30 as toa provide a prima facie justification for the ground or arounds of exemption. Alternatively to that application I would seek a direction that in so far as Pursuant to the first order [ am aiven only part of the material and I am particularly thinking of column 5 where there micght be just no way of summarising it to take out a line or something like that, but in so far as we can only have part of the material, a direction that the respondent bring into existence material that would satisfy, in so far as column 5 18 concerned, that original direction and they give sufficient description of the nature of 1t.

During the re-examination of Mr. Schoer, counsel ror the respondent indicated that he wished to ask the witness some questions on a confidential basis "pertaining

to this particular investigation and relating to more

"HIS HONOUR: Yes. We will qive a direction under 35 (2) (a) that until rurther order the hearing take place in private and we will give a direction that the persons who may be present are the court otficers. the transcript writers. counsel for the respondents, the witness and solicitor instructing counsel for the respondent and officers of the respondent and no other persons. That 1s a direction given on the basis that a transcript will be made of what

takes place so that the tribunal will be in a position if hereafter it determines that all or part of what takes place

should be made known to the applicants, it will be able to do so because it will have transcript that it can make available ..."

The applicants and their counsel were thus excluded from the private session at which, it subsequently appears, Mr. Schoer gave evidence otf critical siqnificance to the

On resuming its public hearing, the Tribunal indicated its concern with the form of the schedules. The respondent then agreed to grant the applicants and their representatives access to certain extracts Trom the schedules. The learned judge announced that the application by counsel for the applicants to look at the schedules was granted to the limited extent that access to

The extracts deal with no more than a small fraction ot the subject documents. The sixth column of the schedule, previously mentioned, is omitted. In some cases, the description in the fifth column 1S «abbreviated. Appended to these reasons as appendix II is a typical page or the extracts which consist. in all, of 15 pages. An examination of the extracts indicates that they give no more

than a taint clue as to the nature, let alone the contents.

of a fraction of the documents in respect of which access is

In response to a request made by counsel for the applicants, on 23 July 1984, the Tribunal gave written reasons tor the directions made under s.35(2) of the Administrative Appeals Tribunal Act restricting the disclosure to the applicants of the contents of documents received in evidence. In those reasons. mention was made ot the evidence of Mr. Schoer, both 1n his affidavit and viva voce 1n private session, although no reterence was made to the content ort the evidence taken ex parte. Particular emphasis was placed upon paragraph 21 of his affidavit, supra, although the Tribunal said that it had then no basis tor finding in this case that any person was minded to do

any of the things described in that paragraph ofr the

"No doubt one of the principal objects ot an investigation of a possible breach of the law is the discovery ot what in fact happened, so that a lawyer may determine whether such a breach occurred. and so that all concerned may know 1n what circumstances any breach occurred. But it 1s to the conduct of the investiq- ation that s.37(1)(a) 1s addressed. not in terms to the ultimate outcome. The word 'conduct' in that paragraph 13s

used, the Tribunal considers, primarily in the sense of management or handling. It is to the impairment or injurious affecting of the management or handling of the investiaation that the words 'prejudice the conduct' refer, at least in their primary sense. If disclosure of a document to a person betore he 18 questioned in the course of an investigation will deprive the investigator of the opportunity to exploit the prospect that that person's answers to the investigator's questions will better serve the attainment of the object of the investigation if the answers are given before disclosure of the document to him. that premature disclosure will affect iniuriously the handling or management of the investigation. And that will be so even if it somehow appears later that the person to whom disclosure is made would have given the same entirely truthful and accurate answers whether or not the document was prematurely disclosed to hin. The prejudice lies in the circumstance that he who 1s. to conduct the investigation has been deprived ot one of the means whereby he would have handled or managed the investigation to attain its object."

"Ir that be the proper construction or the words quoted trom s.37(li(a), the Tribunal is able, on the evidence presently betore 1t, to conclude that disclosure now of any one of a substantial number ot the documents under review could reasonably be expected to prejudice the Commission's investigation; and, to conclude that disclosure now of any of a number of the index lines could reasonably be expected to work the same prejudice."

The Tribunal then rererred to 3.58(2) of the Act, which provides that where, in proceedings under the Act, it 13 established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter. is to be granted. Mention was also made of 3.63(1), which provides that 1n proceedings under Part VI, the Tribunal shall make such order or orders under s.35(2) of the Administrative Appeals Tribunal Act as it thinks necessary, having regard to the nature of the proceedings and, in particular, to the

necessity of avoiding the disclosure to the applicant of

Although not specifically then referred to, no doubt the Tribunal also had regard to s.63(2) of the Act

which provides that notwithstanding anything contained in

the Administrative Appeals Tribunal Act, the Tribunal shall

not, in its decision, or reasons for a decision, ina matter arising under the Act, include any matter or intormation ot a kind referred to in 3.63(1). Section ©3(2) further provides that the Tribunal may receive evidence, or hear arqument, in the absence ot the applicant or his representative where it is necessary todo so in order to prevent the disclosure to the applicant of matter or

Whilst acknowledging the weight to be afforded to 33.35(1), 35(3) and 39 otf the Administrative Appeals Tribunal Act, the Tribunal said that in determining what, if any, order it should make with respect to exhibits under s.35(2)(c) of the Administrative Appeals Tribunal Act, "1t would be an error to fail to give proper weight to the policy which ss.58(2), 63(1) and 6411) of the Act discloses concerning exempt matter". The Tribunal thought that the schedules exhibited to Mr. Schoer's afridavit, apart trom the extracts from those schedules which were volunteered to the applicants. were sutficiently siqnificant to qualify tor exemption in their own ridht. In the Tribunal's view, disclosure or these exhibits could reasonably be expected to

prejudice the conduct of the respondent's investigation.

Having mentioned that no undertaking as to confidentiality was proterred by the applicants' legal representatives, the Tribunal confirmed that no document which it considered to be an exempt document should be shown

Upon resumption of the hearing of the applicatisn for review on 26 July 1984, counsel for the appiicants renewed his application for access and proterred appropriate undertakings as to contidentiality on behalt ot himselt and one ot his instructing solicitors on the tooting that

neither would be engaged in the hearing to be conducted by

the tribunal 1s of the opinion that the exhibits disclose some of the exempt matter which 18 contained in the documents under review, of which the exhibits constitute a descriptive index, and that disclosure of the existence in the respondent commission's possession of some of those documents would cause tne exhibits to be, by torce of section 25, exempt documents by virtue of section 37(1). The policy which section 64 discloses ot denying the tribunal inspection ot documents which the tribunal is satisfied, upon its inspection, are exempt documents would be circumvented by acceding to Mr Spigelman's application. Section 63, distinguishing as it does between the applicant and his representative. may be thought to suggest quite a different policy. But the two provisions may be reconciled: section 64 1s concerned to prohibit disclosure of a document' the inspection ot which has enabled the tribunal to determine that 1t is an exempt document. We have been so satistied in relation to these exhibits arter hearing evidence (including evidence 1n camera) and inspecting them. Although the exhibits are not, in our opinion, documents to which section o4 applies. the policy which that section discloses would be circumvented if we were to accede to Mr Spigelman's application, That consideration weighs in our exercise of the power conferred by section 35 (2) of the Administrative Appeals Tribunal Act 1975 to lead us to the conclusion that the application should be retused."

Counsel for the applicants. having indicated that the applicants wished to challenge on appeal the Tribunal's

decision given in the context of the application under 3.35

of the Administrative Appeals Tribunal Act, that the subject documents fell within the exemption provided by 3.37(1)(a)

or the Act, invited the Tribunal then to dispose of the substantive application under s.55 of the Act on that ground. The Tribunal acceded to the invitation and dismissed the application for review for the reasons it gave

"Since 23 July 1984 the Tribunal has heard further evidence by Mr. Schoer. We remain as we were then, without any basis for a finding that anv person exists who would seek to use intormation which disclosure of one or more of the documents might arford in order to prevent the respondent Commission trom discovering what in fact occurred in relation to the matters which are under investigation by the respondent. Subject to that observation. we record our acceptance ot the oral evidence of Mr. Schoer, as well as the evidence contained in the passages trom his affidavit which we quoted in our reasons given on 23 July 1984.

We adhere to the construction ot s.37(l)(a) which we attempted to state in those reasons. We would only add that, if the words, prejudice the conduct or an investigation', in 3.37(1)(a) require that there be a prejudice in respect ot the obiect of investigation, that is the discovery of what happened. that requirement will in our opinion be Satistied by the

diminishment in assurance of the achievement of that obiect which attends deprivation of the 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. Because or the prohibition which $.6312)(a) of the Freedom ot Intormation Act 1982 expresses, the justification - 1f dustification there be - of our belief, and of our tinding that each of the documents the subtect ot this application is an exempt document, must be sought in the transcript of the evidence given in private."

The applicants challenge both the Tribunal's construction of s.37(l)(a) and its application ot the provision to the tacts or the case. Specirically. they rely upon the inability of the Tribunal to point to any person who would be minded to use information which disclosure of the documents in question might afford in order to prevent the respondent from discovering what in tact occurred. The

applicants say that this finding must mean that the loss of

opportunity to exploit the situation relied on by the Tribunal is no more than an academic question, since even if the respondent's hand were "tipped". no adverse impact upon

As part of this argument, the applicants submit, correctly I think, that the question or prejudice under 3.37(1)(a) is to be tested, not in any abstract fashion, but by reterence to the particular circumstances of the investigation in hand, since the words "ina particular instance" in 3.37(1)(a) qualify each of the limbs of the sub-section (see Murtagh v. Federal Commissioner of Taxation (1984) 54 A.L.R. 313 at p.332). In support of this submission, the appliants point to the legislative history of s.37. In 1ts original form in the Freedom of information Bill, clause 32(2)(a) contained a provision, subsequently omitted, tor the exemption otf a document if its disclosure would, or could reasonably be expected to "preiudice the carrying on generally ot investigations concerning breaches or evasions of the law". But this provision was omitted from what became s.37(2) of the Act. FPurtner, the decisions of the courts of the United States in this area relied on by the respondent provide no assistance because of the use ot the plural in this context in the American legislation (see National Labour Relations Board v. Robbins Tire & Rubber Co. 437 U.S. 214 (1978) at pp.223-4). This is not to say that exemption may not be claimed under the Act in respect or a document describing methods or procedures tor preventing, detecting, investigating or dealing with matters arising out of, breaches or evasions of the law. Section 37(2)(b)

provides for such an exemption where disclosure would. or

would be reasonably likely to, prejudice the efrectiveness

of those methods or procedures, although no claim under that

However, even if, as the applicants contend, 3.37(1)(a) confines the Tribunal's consideration to the facts of the particular case and even if the Tribunal cannot now tind that a person exists who might interfere with the course ot the investigation, the respondent's loss of opportunity to exploit the situation may nonetheless

constitute prejudice of the kind contemplated by s.37(1)(a).

In National Companies and Securities Commission v. News

Corpor on Limi , supra, Mason, Wilson and Dawson, JJ.

"Tt 1s or the very nature or an investigation that the investigator proceeds to gather relevant intrormation from as wide a range ot sources as possible without the suspect looking over his shoulder all the time to see how the inquiry 1s aqoing. For an investiaator to disclose his hand prematurely will not only alert the suspect to the progress or the investigation but may well close ott other sources of inquiry."

Although the High court was concerned with a ditferent question, the reasoning is of general application. It indicates prejudice which could reasonably be expected in any investigation. It tollows that, as matter of

construction, the Tribunal correctly held that premature

disclosure by the respondent of material held by it could reasonably be expected to constitute prejudice of the kind contemplated by s.37(1)(a). It follows, in my view, that the applicants' challenge to the Tribunal's construction of

to flow trom premature disclosure of the respondent's hand, two vital questions remain tor decision in any application of s.37(l)(a) to the tacts of the case. First, is disclosure still premature, having regard to the lapse or time since the investigation commenced? In this context, 1t 1s significant that after their observations cited supra, Mason, Wilson and Dawson, JJ. went on to say (at pp.437-8) that "there comes a time in the usual run of cases when the investigator will seek explanations from the suspect himself and tor that purpose will disclose the intormation that appears to require some comment". Secondly. when the respondent speaks of disclosing its hand, exactly what is involved? Does its "hand" include all the documents. more than 6,000 in number, held by the respondent or. more likely, is "it only those containing sensitive information? The mere fact that a document happens to be tound in an investigation tile does not entitle 1t to the benefit of a

blanket exemption under s.3/7(1)(a) (ct. N.L.R.B. v. Robbins Tire and Rubber to., supra, at p.236).

are to the case tor exemption. cannot rest in general assertions by the respondent or its executive director. The

approach adopted by McPherson. J. in Adsteam Building

Industries Pty. Limited v. ueensla Cement an ime Company. Limited (unreported - 26 September 1984) in

rejecting an objection by the respondent to the production of documents on public interest grounds, is instructive for present purposes. An affidavit similar to Mr. Schoer's was there relied upon. Yet his Honour was unimpressed by the lack of specific evidence demonstrating that production of investigatory documents would occasion any prejudice to the

In the present case, the evidence made available to the applicants does not enable a view to be formed, one wav or another, as to the responses which should be given to the two fundamental questions to be answered before the applicants can be excluded from access to all the documents. The atfidavit evidence is couched in the most general terms and the extracts trom the schedules are hardly comprehensive. Implicit, it not explicit, in the Tribunal s reasons is a finding that the justitication for upholding the claim for exemption is the evidence trom the respondent

Given the importance or that evidence, the applicants contend that they were denied natural justice when their counsel was not permitted access to the schedules even upon terms that he undertake to keep the information conridential to himself. They argue that, in the events which happened, although appropriate machinery was available to protect adequately the respondent's interests in not divulging significant information to the applicants, this machinery was never availed ot. They suggest that at least two possible courses were open. The public hearing by the Tribunal could have proceeded by reference to categories or classes of documents which would have enabled the point to be argued as a matter ot principle. thus avoiding the need to disclose the contents of the documents (see Harris v. Australian Broadcasting Corporation (No. -") (1983) 50 A.L.R. 567 at p.568: on appeal (1984) 51 A.L.R. 581 at p.583). Alternatively, the applicants say, 1r the classification of the documents into categories did not permit a meaningrul discussion of the issues, the proper exercise of the Tribunal s discretion in the circumstances would have permitted disclosure ot the schedules to counsel for the applicants upon his undertaking not to divulge that information to any person. The adoption of either course would have apprised the applicants ot the case sought to be

There is considerable force in these submissions. Certainly, the applicants were never informed of the content of significant material used against them or even of its qeneral nature. In that important respect, the applicants were not made aware of the case to be made against them.

It must follow, that, prima facie, thev were denied natural

justice (see Kanda v. Government ot the Federation of Malaya (1962) A.C. 322 at p.337; Mahon v. Air New Zealand Limited

(1983) 50aA.L.R. 193 at p.214, News, supra, per Mason, Wilson and Dawson, JJ. at p.438).

The respondent seeks to avoid the prima facie conclusion that to proceed against the applicants ex parte amounted to a denial ot natural justice by resort to s3.58(2), 63 and 64 of the Act. However, in my view, it does not trollow trom these provisions. taken singly or collectively, that the Tribunal was bound to hear the significant evidence relied on by the respondent in this

application in the absence of the applicants and their

For one thing, 3.o04(1) wa3 not applicable here. With one exception. what the Tribunal inspected was not the documents tor which exemption was claimed but the schedules or "summaries" ot their contents. For another thing, it is impossible to imagine any evidence which the respondent

would need to adduce in the application for review only upon

the extraordinary footing that not only the applicants but also their counsel were excluded. The significance of these documents should not be inflated. They do not concern the security ot the nation or sensitive areas of government (as cabinet papers might do) in respect of which, in the public interest, extraordinary measures are called for so as to prevent any loss of secrecy (see Alister v. The Queen (1984) 58 A.L.J.R. 97 at p.i24). No doubt some of the material in the possession ot the respondent was, and perhaps 13s,

commercially sensitive information. To this extent. the

material could have been restricted to counsel for the applicants, upon their giving undertakings as to

contidentiality usual in this type otf case (see Re Trade Practices Tribunal; Ex parte Tooheys Limited (1977) 16

A.L.R. 609 at p.ol4; Australian Broadcasting Commission v. Parish (1980) 29 A.L.R. 228 at p.246). Alternatively, as

has been said, even without undertakings as to to contidentiality, the application could have proceeded along the lines usually adopted where a "public interest" claim Tor privileqe 13 made on a discovery application, that is. by intorming the other party of the general nature or class or classes of documents involved so that the matter may be arqued and tested by reference to categories of documents rather than by disclosure of their contents. By departing from this procedure, as contemplated by Deputy President

Hall's directions, and by insisting on the holding of not

only in camera but also ex parte proceedings, the respondent

virtually put it beyond the power of the Tribunal to afford the applicants proper notice of the case to be made against them. In short, in ignoring the directions, the respondent forced the Tribunal into the invidious position ot either proceeding ex parte or declining outright to hear the evidence claimed by the respondent to be confidential. If the directions had been complied with 'and no satisfactory reason for non-compliance was advanced), the Tribunal would never have found itselt in the dilemma with which it was

The respondent submits that warrant tor the extraordinary course ot taking signiticant evidence ex parte

may be found in the decisions of the courts of the United States in this area. But the leading authority, Vaughn v. Rosen 484 F.2d. 820 (1973), which, tronically, was also cited by Deputy President Hall in his reasons, establishes that those courts will "simply no longer accept conclusory and qeneralised allegations of exemptions ... but will require a relatively detailed analysis in manageable segments" 'at p.u26). It was also there held that an analysis sutficiently detailed "would not have to contain tactual descriptions that it made public would compromise the secret nature of the intormation, but could ordinarily

be composed without excessive reference to the actual

language, of the document" (at pp.826-7). If anything, the case illustrates the wisdom of the respondent's following,

rather than ignoring, the Deputy President's directions.

1462, reference was made to the possibility of exclusion of not only the party seeking access but also of his lawyers during inspection of the material said to be accessibie, it was made clear (at p.1471) that such a course should only be embarked upon where "absolutely necessary". It was there Said that such necessity exists when "(l)the validity of the government s assertion of exemptions cannot be evaluated without information beyond that contained in the public arridavits andin the records themselves and (2) public disclosure of that information would compromise the security

No such necessity existed in the present case. Indeed, short of a situation involving the interests ot national security, defence or hiah government policy, it 13 impossible to imagine circumstances which would justify the exclusion of counsel tor the party seeking access. Ag has been said, the matter could always be arqued by reference to categories. And, if appropriate. counsel could have given, even here. the usual undertaking as to contidentiality in respect ot the material disclosed to him, being. on this

hypothesis, the schedules exhibited to Mr. Schoer s

affidavit (see Warner - Lambert Co. v. Glaxo Laboratories Limited £1975] R.P.C. 354; Re_ B £1981] 2 N.S.W.L.R. 372 at pp.382-3).

To proceed ex parte ina matter such as this is a course to be adopted only for the most compelling reasons and asa last resort. Given at least the possibility otf adopting the alternative procedures discussed previously, no need tor the exclusion ot the applicants' counsel was, in my

view, demonstrated. It follows, in my opinion, that the

The respondent further submits that. evenif a denial of natural justice did occur, the matter ts not within the jurisdiction of the Court under 3.44 of the Administrative Appeals Tribunmai Act. The submission is that, under s.44, the Court is contined to deaiing with the ultimate decision only isee Dtrector-General of Social Service v. Chaney (1980) 31 A.L.R. 571 at p.593) yet the applicants complaint here relates to a merely interlocutory aspect ot the hearing betore the Tribunal, being the procedures adopted pursuant to s.35(2) of the Administrative Appeals Tribunal Act and ss.63 and 64 or the Act, as distinct from the ultimate or substantive decision

It is true that an appeal under s.44 of the A al Act is limited to a question

of law only. But determination of whether there has been a

breach of the rules or natural justice does involve a

question of law (see Maurice v. London County Council £19641] 2Q.B. 362 at p.380). Further, it may be accepted that, in

a sense, the questions which now arise are adjectival rather

than substantive. But it does not follow that a question of

law 13 not thereby involved. In Mobil vil Australia Pty. Limited v. Fe Commissioner ot T. m (1963) 113 c.L.R. 475 a Taxation Board of Review sought to take evidence in the absence of the taxpayer and his representative. It was suggested that no question of law arose in that connection. Kitto, J.. am rejecting the

+e. (a question or law) arises where. in the course ot a reterence, the Board

function properly without deciding a question, adjectival rather than substantive though 1t may be, which depends wholly upon the application of the law to a situation which has actually developed."

In Chaney, supra, it was held that only those parts of the Tribunal's reasons which constitute the structure of its ultimate decision can be the subject of an

appeal under 3.44. However. to withhold from both the

applicants and their counsel any meaningtul intormation as to the substantive case to be made against them in the respondent's application under s.35(2) of the Administrative Appeals Tribunal Act was, in my opinion, a denial of natural justice which, in turn, vitiated the ultimate decision to refuse that application for review. Indeed, the making of

the order under 3.35(2) of the Administrative Appeais

Tribunal Act was based on the view that every one of the documents was exempt by virtue of 3.37(1)(a). The making of the order under $.35(2) was thus fundamental to the Tribunal s decision to reject the substantive application under 3.55 ot the Act. It rollows that the matter 1s

justiciable under 3.44 or the Administrative Appeals Tribunal Act.

Since, 1nmy view, the Tribunal erred in law in denying the applicants natural justice, the decision or the Tribunal under appeal should be set aside upon the rooting that the question ofr the claim tor exemption under s.37(l:(a)» should be considered de novo by the Tribunal. Since I have not seen any ot the evidence adduced ex parte by the respondent, I am naturally unable to express any view on the merits of the application tor review. Its fate must

I would make the following orders. I would allow the appeal, order that the decision of the Tribunal given on 9 August 1984 be set aside, and order that the application for review be remitted to the Tribunal. Since the respondent has had some measure of success in the appeal, I would turther order the respondent to pay one-half oft the

| certify that this and the <7 preceding Pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. -