Counsel for the Respondent: Miss R.M. Henderson

Solicitors for the Respondent: Australian Government Solicitor

The appellant pay to the Commonwealth of Australia its costs of the appeal.

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

This appeal from a single judge of the Court dismissing an appeal from the Administrative Appeals Tribunal ("the Tribunal") under the Freedom of Information Act 1982 ("the FOI Act") arises in the following circumstances.

2. In 1976, the appellant, Gordon Peter Wiseman, and his then wife, Jose Diana Wiseman, mortgaged their matrimonial home, then owned by them jointly, to the Defence Service Homes Corporation ("the Corporation") to secure a borrowing. In 1979, the marriage was dissolved. In 1981, the Family Court ordered that the appellant transfer his interest in the property to Mrs. Wiseman; and that she indemnify him against his liability under the mortgage. The Corporation was requested by Mrs. Wiseman to consent to the transfer pursuant to s.35 of the Defence Service Homes Act 1918. In considering her request, the Corporation required Mrs. Wiseman to provide certain information and to furnish certain documents to it in order that it could be satisfied that (a) Mrs. Wiseman had the capacity to meet the obligations under the mortgage and all other outgoings on the home; (b) the home would continue to be used as a home for Mrs. Wiseman and her children; and (c) Mrs. Wiseman had no intention of remarrying. In response to this requirement, Mrs. Wiseman provided the Corporation with (i) a statutory declaration "with respect to remarriage"; and (ii) some letters "with respect to the persons who would live in the home and also giving details of Mrs. Wiseman's financial affairs, so as to satisfy the Corporation that Mrs. Wiseman could keep up the payments under the mortgage."

3. The documents were supplied to the Corporation in 1981 before the coming into operation of the FOI Act. In 1987, Mr. Wiseman sought access to those documents under the FOI Act. However, the documents were considered by the Corporation to be exempt documents under ss.41 and 45 of the FOI Act which, so far as material, are as follows:

"s.41(1) A document is an exempt document if its

disclosure under this Act would involve the unreasonable

disclosure of information relating to the personal

affairs of any person (including a deceased person).

(2) ...., the provisions of sub-section (1) do not

have effect in relation to a request by a person for

access to a document by reason only of the inclusion in

the document of matter relating to that person.

(3) ..."

"s.45(1) A document is an exempt document if its

disclosure under this Act would constitute a breach of

confidence.

(2) ..."

4. Mr. Wiseman applied for a review by the Tribunal of the Corporation's decision. The Tribunal affirmed the decision of the Corporation except in respect of three documents which were held to be not exempt. No question now arises in respect of these three documents.

5. Mr. Wiseman then appealed to this Court, on a question of law, from the Tribunal's decision. A judge of the Court dismissed the appeal. The appellant now appeals from his Honour's decision.

(a) The Tribunal's reasoning

The question here was whether disclosure of the

documents under the FOI Act "would involve the

unreasonable disclosure of information relating to the

personal affairs of (Mrs. Wiseman)."

The documents in question were examined by the Tribunal

for the purpose of their characterisation. The

documents were described, for the purposes of the

proceedings, in a schedule to an affidavit sworn by Mr.

G.J. Sharp who is an officer in the New South Wales

Administration of the Corporation. Mr. Sharp's

description of the documents was not challenged in

cross-examination or otherwise. The documents were

described as follows (the three documents held not to be

exempt have been omitted):

DOCUMENT... ...DATE AUTHOR/RECEIVER DESCRIPTION

NO.

1. 21/9/1981 Jose Diana Wiseman Letter furnishing

to Defence Service personal

Homes Corporation information in

regard to

requirements of

Defence Service

Homes Corporation

2. 16/7/1981 Department of Copy letter

Social Security to setting out

Jose Diana Wiseman personal financial

information

3. 22/9/1981 Moroney, Rutter & Letter setting out

Mantach, Solicitors personal and

of 46 Watt Street confidential

Newcastle to information and

Defence Service enclosing material

Homes Corporation in regard to

requirements of

Defence Service

Homes Corporation

4. 16/7/1981 Department of Letter setting out

Social Security to personal and

Jose Diana Wiseman confidential

financial

information

5. 6/10/1981 Moroney, Rutter & Letter enclosing

Mantach, Solicitors personal and

of 46 Watt Street confidential

Newcastle to material in regard

Defence Service to requirements of

Homes Defence Service

Homes Corporation

6. 27/11/1981 Moroney Rutter & Letter relating to

Mantach, Solicitors personal and

of 46 Watt Street confidential

Newcastle to material required

Defence Service by Defence Service

Homes Homes Corporation

...

1O. 3/12/1981 Statutory Personal and

Declaration Jose confidential

Diana Wiseman information sought

by Defence Service

Homes Corporation

11. 11/12/1981 Moroney, Rutter & Letter providing

Mantach, Solicitors personal and

of 44 Watt Street, confidential

Newcastle to information to

Defence Service Defence Service

Homes Corporation Homes Corporation

Having examined the contents of the documents, the

Tribunal described their character in these terms:

"We have examined all the documents for which

exemption is claimed...Eight of them consist of

letters from (Mrs. Wiseman) or her solicitors to

the (Corporation), copies of letters from another

Government agency setting out personal and

confidential financial information concerning

(Mrs. Wiseman) and a statutory declaration by

(Mrs. Wiseman) containing personal and

confidential information relating to her. All

these documents came about as a result of the

application to the (Corporation) for its consent

to the transfer. The letters from the other

agency are dated in July 1981. All the other

documents to which we have referred are dated

between September and December 1981."

The Tribunal dealt first with the question whether the

documents related to the "personal affairs" of Mrs.

Wiseman within the meaning of s.41(1). Taking "personal

affairs" to refer to "matters of private concern to an

individual" (see Re Williams [1985] AATA 226; (1985) 3 AAR 529; cf.

Department of Social Security v. Dyrenfurth (1988) 80

ALR 533 at pp 535-9), the Tribunal said:

"The remaining 8 documents however clearly deal

with (Mrs. Wiseman's) personal affairs. As they

were intended to inform the (Corporation) before

it made a decision to consent to the transfer,

the documents necessarily cover (Mrs. Wiseman's)

financial circumstances, the use to which she

intended to put the matrimonial home and her then

intention of remarrying. It would be hard to

imagine a better description of these documents

than ones containing information relating to the

personal affairs of a person other than the (appellant)."

The Tribunal turned next to the question whether

disclosure would be "unreasonable". The Tribunal

adopted as the reasoning in Re chandra 6 ALN 257 (at

p 259) to the following effect:

"Whether a disclosure is 'unreasonable'

requires...a consideration of all the

circumstances including the nature of the

information that would be disclosed, the

circumstances in which the information was

obtained, the likelihood of the information being

information that the person concerned would not

wish to have disclosed without consent and

whether the information has any current

relevance. Plainly enough what s.41 seeks to do

is to provide a ground for preventing unreasonable

invasion of the privacy of third parties.

...However, consistently with the stated object

of the Act (see s.3), it is also necessary...to

take into consideration the public interest

recognised by the Act in the disclosure of

information in documentary form in the possession

of an agency and to weigh that interest in the

balance against the public interest in protecting

the personal privacy of a third party whose

personal affairs may be unreasonably disclosed by

granting access to the document."

Applying these principles and the reasoning in Re Corkin

2 AAR 215, the Tribunal concluded that disclosure would

be unreasonable and in consequence, decided that

exemption under s.41(1) had been established.

(b) The reasoning of the primary judge

His Honour was of the view that it was open to the

Tribunal to find that the information sought related to

Mrs. Wiseman's personal affairs and that its disclosure

would be unreasonable. The primary judge saw the

dispute as essentially one of fact which could not be

agitated in an "appeal" under s.44 of the Administrative

Appeals Tribunal Act 1975, which is limited to questions

of law only. His Honour saw no legal error in the

Tribunal's reasoning.

(c) The appellant's challenge to the primary judge's decision

The principal contention advanced by the appellant on

this branch of the appeal is that the Tribunal -

"in effect reversed the onus in determining whether

disclosure would involve the unreasonable disclosure

of information relating to the personal affairs of any

person in that it:

(i) rejected the argument by the appellant that the

information related to the financial affairs of

his former wife which was of significance to him

because of the previous Family Law proceedings:

...

(ii) rejected the argument by the appellant that

because the (Corporation) acted voluntarily to

deprive the husband of his interest in the house

the husband had special reasons for knowing the

grounds for doing so.

(iii) the Tribunal rejected the argument that because

(the appellant) still had liabilities under the

mortgage he was entitled to know what his wife

had said without advancing further reasons other

than the following:

(a) the nature of the information provided by

the wife was highly personal,

(b) information was necessary to enable the

transfer,

(c) the wife had expressly said (albeit after

the event) that what she said was

confidential and not to be disclosed to her

husband,

(d) the documents being 6 years old had no

current relevance

all of which matters went not to the question of

reasonableness but to the question of

confidentiality and the rejection by the Tribunal

of the appellant's arguments as to why he had an

interest in knowing did not mean that there were

positive grounds for finding that disclosure

would be unreasonable."

In our view, no error of law on the part of the Tribunal, or of the primary judge, has been demonstrated.

The potential application of s.41(1) in the present circumstances is essentially one of fact, in the one instance, and of fact and degree in the other. Whether the information related to Mrs. Wiseman's "personal affairs", is, in essence, a question of fact. No real question arises as to the construction of this part of s.41(1). As has been said, the Tribunal's characterisation of the information as related to Mrs. Wiseman's "personal affairs" was not seriously challenged. The Tribunal's description of the documents was plainly open to it on the material available to us. Indeed, on that material, the Tribunal's characterisation of the information appears to be correct. At the least, no error of principle is indicated here on the part of the Tribunal or of the primary judge.

The second limb of s.41(1) requires the making of a judgment as to whether the disclosure would be "unreasonable". Again, no real question of principle arises here. Whether or not disclosure would be "unreasonable" is a question of fact and degree which calls for a balancing of all the legitimate interests involved. The appellant seeks to draw comfort from the circumstance that the Corporation was not legally compelled to give its consent under its statute. However, this submission ignores the obvious practical considerations which underlay the transaction. Again, it was at least open to the Tribunal to conclude that disclosure would be "unreasonable". No error of law, by the Tribunal or by the primary judge, has been shown.

(a) The Tribunal's reasoning

The Tribunal approached the matter on the footing that

the relevant inquiry was whether the information in

question was "received under circumstances imposing an

obligation of confidence". The Tribunal then said:

"Here again the wife was under the impression that

it was necessary to produce this information and

to furnish these documents in order to secure her

title to the matrimonial home. Whether or not

she was in error as a matter of law is, in our

view, beside the point. She was called upon to

produce certain evidence and she did so,

principally through solicitors. The

circumstances of confidentiality are confirmed in

the subsequent letter from those solicitors to

which we have referred. An examination of the

documents themselves and of the circumstances in

which they came into being would confirm an

inference of confidentiality. There is no

requirement as to reasonableness or otherwise

under s.45. If the documents would result in a

breach of confidence then they are exempt from

production under the Act. In our view they fall

fairly within this category."

(b) The primary judge's conclusion

His Honour said that this was "primarily a decision

on a point of fact". The judge could not identify any

error of law in the Tribunal's reasoning. He added:

"It is not always easy to determine whether

information has or has not been supplied under an

understanding of confidence. A decision is

simple enough if the confidence is expressed, but

often the question must be determined having

regard to the nature of the communication and the

circumstances in which the communication was made."

(c) The appellant's challenge to the primary judge's decision

The principal contention advanced by the appellant

on this branch of the appeal was that there was no

evidence from which the necessary quality of

confidentiality could be inferred here.

It is true that there was no express contract made,

or explicit stipulation imposed, at the time the

information was imparted, that it be kept

confidential. But it is trite law that

confidentiality can also be established by

inference drawn from the whole of the

circumstances. Information provided by an

individual with respect to his or her private

affairs, including financial information is, prima

facie, inherently confidential (see Baueris v.

Commonwealth of Australia (1987) 75 ALR 327 at

pp 329-330). In our opinion, it was at least open

to the Tribunal to imply a pledge of

confidentiality in the present case. Again, this

is essentially a question of fact. No error of

principle has been demonstrated.

6. In the result, the appeal fails and should be dismissed, with costs.