Colakovski v. Australian Telecommunications Corporation

(1991) 100 ALR 111
(1991) 29 FCR 429
(1991) 23 ALD 1
(1991) 13 AAR 261

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(Judgment by: Lockhart J)

Colakovski
v Australian Telecommunications Corporation

Court:

Judges:
Lockhart JJenkinson J
Heerey J

Subject References:
Administrative law
Freedom of information
Personal affairs
Evidence of criminal offence

Hearing date: 5 March 1991
Judgment date: 17 April 1991

Melbourne

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Judgment by:
Lockhart J

This is an appeal from the judgment of a single judge of this court (Ryan J) dismissing an appeal to the court, under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), from a decision of the Administrative Appeals Tribunal (the tribunal) in connection with an application by the appellant under the Freedom of Information Act 1982 (Cth) (the FOI Act).

The history of the case commences in 1986 when the appellant received a number of telephone calls to his home, but when the telephone rang and he picked up the handset he heard no voice at the other end. The first occasion on which this occurred was shortly before Christmas 1986. Calls continued until June 1987. Early in January 1987 the appellant asked the respondent to trace these calls and identify the persons who were making them to him. The respondent traced a number of the calls. In some cases the respondent was able to identify a known subscriber's telephone service from which the calls had been made to the appellant's telephone number. Records were maintained by the respondent of the calls which it had been able to trace.

The appellant wished to find out the identity of the "nuisance" cALL ER or cALL ERs. He made a request under s 15 of the FOI Act for production to him of records created by the respondent in the course of investigating the offending phone calls. The respondent refused that request, relying so far as is presently relevant, on s 41(1) of the FOI Act which provides:

(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).

In the proceedings before the tribunal evidence was given by the appellant and by Mr Malcolm Hedges, the manager of freedom of information in the employ of the respondent. Some of Mr Hedge's evidence was given in camera in the absence of the appellant, his counsel and solicitor. In addition the tribunal gave a direction pursuant to s 35(2) of the Administrative Appeals Tribunal Act and s 63 of the FOI Act which in substance prohibited the disclosure of the appellant, his counsel and solicitor of the contents of two documents marked as Exs 2 and 3 before the tribunal. Exhibit 2 is an affidavit of Mr Hedges and Ex 3 is a file note made by an officer of the respondent in the course of investigating the "nuisance" calls to the appellant's telephone service. The respondent did not claim that either of these documents was an exempt document within s 41(1). There was tendered by the respondent as Ex 1 before the tribunal a schedule of documents for which exemption under s 41(1) was claimed by it. The schedule lists 13 documents, though the document described as "1" in fact consists of two documents, each described as "call charge analysis system" (one dated 3 August 1987 and the other 21 March 1987) and as "revealing calls made by persons suspected of making calls to applicant. Exemption claimed under s 41(1). Total exemption claimed."

It was agreed between the parties that neither the tribunal nor Ryan J examined any of the documents in the schedule. Neither of the two documents described as "1" in the schedule was made available by the respondent to the appellant, but portions of the documents numbered 2 to 13 were made available to him after the respondent deleted from them the information which in its view would reveal the name, address or telephone number of the subscriber from whose telephone service the calls were made to the appellant or the identity of the cALL ER or cALL ERs. The respondent relied on s 22 of the FOI Act as authority to delete those portions of the documents.

Counsel for the respondent informed us that, although the documents for which exemption was claimed (being documents identified in Ex 1 in the proceedings before the tribunal and numbered 1 to 13) were not before the tribunal or Ryan J, the case was conducted before the tribunal and Ryan J on the basis that it should be assumed, from the description of the documents in the schedule itself, that the portions which had been deleted before making the remainder available to the appellant would have revealed the name, address and telephone number of the subscriber to the service from which calls were made to the appellant's telephone number and the identity of the cALL ER. Counsel for the appellant did not argue to the contrary. Also, there was some initial confusion in argument before us as to whether Ex 3 (the confidential exhibit being the file note of an officer of the respondent) was in fact a document for which exemption was claimed by the respondent under s 41(1); but counsel informed us later in argument that this was not the case and that it was simply a document tendered by the respondent before the tribunal which was the subject of an order under s 35(2) of the Administrative Appeals Tribunal Act and s 63 of the FOI Act. By the conclusion of argument before us it was clear that neither party sought to contend on appeal or at any earlier stage of this proceeding that confidential Exs 2 and 3 (Mr Hedges' affidavit and the departmental file note respectively) were documents for which exemption was claimed under s 41(1) or that they owed their confidential nature otherwise than to the orders made by the tribunal under the statutory provisions already mentioned.

It was argued before Ryan J that the decisions of the tribunal that part of the hearing before it take place in camera and that disclosures of evidence in the private hearing be restricted to the respondent and its legal representatives were errors of law. Ryan J rejected the argument and held that there was nothing to suggest that it was not open to the tribunal to exercise in the way it did the discretion given to it under s 35(2) of the Administrative Appeals Tribunal Act and s 63 of the FOI Act. Ryan J's findings and decision on this question were not challenged on this appeal.

The tribunal considered whether the documents referred to in Ex 1 fell within s 41(1), and, in particular, whether their disclosure would involve information relating to the "personal affairs" of any person. The tribunal referred to a number of decisions of this court where the meaning of "personal affairs" in the context of the FOI Act had been considered and concluded that, if access was given to the documents "what would be disclosed would be not only that that person made a number of telephone calls to the applicant but the circumstances in which he or she made them. Whether the information related to his or her personal affairs depends, therefore, on those circumstances, that is to say, how and why the calls were made." The tribunal considered, amongst other things, the contents of Exs 2 and 3 as part of the circumstances in which the calls the subject of the documents for which exemption was claimed were made. In the result the tribunal found that the information contained in the exempt documents did relate to the "personal affairs" of the subscriber from whose telephone service the calls to the appellant's telephone service were made or of the person who made the calls.

The tribunal then considered whether the disclosure of the documents in Ex 1 would involve the "unreasonable disclosure of information relating to the personal affairs of any person". The tribunal said: "In my view disclosure of information is generally unreasonable where it will reveal the personal affairs of a person that are not generally known or ascertainable by the public at large, and that are not specifically known or specifically ascertainable by the person making the request for the information, and where the person whose personal affairs they are does not consent to their disclosure."

The tribunal said also that it was necessary to have regard to all the relevant circumstances to determine whether this would always be so. The tribunal had regard to the appellant's interest in obtaining the information and to the circumstances in which the calls were made, including the material in Exs 2 and 3, and concluded that the disclosure of the documents would involve the unreasonable disclosure of relevant information relating to the personal affairs of the cALL ER or subscriber from whose service the "nuisance" calls had been made. Ryan J found that there was no error of law committed by the tribunal in its substantive findings.

Before this court on appeal counsel for the appellant advanced a number of arguments which I shall consider in turn. First, it was submitted that the tribunal and Ryan J erred in that, having equated "personal affairs" in s 41(1) with the notion of "private" affairs, they then proceeded to characterise the documents for which exemption was claimed and the information in them as relating to a "private affair". As I understand the submission, it was said that for a matter to be truly private it must be "self contained", but that the appellant had been "deliberately involved" in that he had been telephoned over the telecommunications system from the number which is being kept secret from him and that, by use of that system he had been harassed and the subscriber from whose service the calls were made had put the subscriber's otherwise private affairs into the public arena.

The first matter that arises for consideration is the meaning of the expression "personal affairs" in s 41(1) of the FOI Act. That expression has been considered in a number of cases. It was considered by a Full Court of this court in News Corp Ltd v National Companies and Securities Commission (1984) 1 FCR 64 ; 52 ALR 277 in the context of s 12(2)(a) of the FOI Act which relates to the right of access to documents. Bowen CJ and Fisher J in a joint judgment agreed (FCR at 73) with St John J (FCR at 79) that the expression "personal affairs" "refers only to the affairs of a natural person and not to the affairs of a corporation".

In Re Williams and Registrar, Federal Court of Australia (1985) 8 ALD 219 Beaumont J, sitting in the Administrative Appeals Tribunal, considered the same expression where used in s 41(1) of the Act. His Honour said at 221-2:

In my opinion, the reference in the Act to the 'personal affairs' of a person was intended to have its ordinary dictionary meaning, that is to say, to refer to matters of private concern to an individual. It is not necessary to attempt an exhaustive definition of the phrase. It will suffice for present purposes to say that, ordinarily, information as to the work capacity and performance of a person is not private in that sense. It is something observed by others and commonly discussed by those involved in that work. Ordinarily, information as to a person's vocational competence is not something which is treated as confidential. Prima facie at least, it is not part of his or her 'personal affairs'.

The other members of the tribunal (Mr McMahon and Mr Renouf) agreed with those views of Beaumont J.

In Young v Wicks (1986) 13 FCR 85 ; 79 ALR 448 Beaumont J (FCR at 89) adhered to the view which he had expressed in Re Williams The issue in Young v Wicks was whether documents relating to the applicant's activities as an aircraft pilot were exempt documents under s 41 of the FOI Act. His Honour said (FCR at 89; ALR at 452):

The applicant, it is true, is the subject of the documentation but the documents are concerned exclusively with the public regulation of air navigation. The result is that the documents have a public, rather than a private, character.

The question arose before a Full Court of this court in Department of Social Security v Dyrenfurth (1988) 80 ALR 533. In that case the applicant sought access under the FOI Act to documents concerning the process of selection of people for positions in the public service, he being a disappointed applicant for a public service position; but access was refused under s 41 by the Department of Social Security on the ground that it would involve the unreasonable disclosure of information relating to the "personal affairs" of other persons. The Administrative Appeals Tribunal, before whom the matter first came, followed Beaumont J in Young v Wicks. The Department argued before the Full Court that Beaumont J had taken too restricted a view of the expression "personal affairs". The Full Court (Sweeney, Keely and Ryan JJ) said at 538-9:

In our view, it cannot be laid down by way of definition that an assessment of the capacity or previous work performance of an employee or prospective employee necessarily contains 'information relating to the personal affairs' of that person. Equally, however, it is not permissible to construe the phrase, as the tribunal appears to have done, as being incapable of application to information contained in an assessment of capacity or work performance. We do not understand Beaumont J to have adopted, in Young v Wicks or Re Williams, any such rigidly exclusionary interpretation of the phrase. In the former case, his Honour, on an examination of the documents held by the Department of Aviation, found, as a matter of fact, that none of them contained information 'referring to matters of private concern to the applicant as an individual'. That he found it necessary to undertake such an examination at all argues strongly against the view that his Honour considered that the departmental documents in that case were, by definition, incapable of containing 'information relating to the personal affairs of the applicant'.

The Full Court then referred to the decision of Beaumont J in Re Williams and said that in that case his Honour had been "at pains to disavow any attempt to define what the phrase necessarily excluded". Their Honours emphasised the repeated use by his Honour of the word "ordinarily" and the phrase "prima facie at least" in the passage from Beaumont J's decision in Re Williams previously cited, and said they regarded those expressions as an acknowledgment by his Honour that "some assessments of work capacity and performance or vocational competence, exceptional though his Honour thought they might be, would contain information relating to the personal affairs of their subjects". The Full Court referred to what was said by St John J in News Corp and said at 539- 40:

It is sufficient for present purposes to indicate our view that information relating to the personal affairs of a person, such as information concerning his or her state of health, the nature or condition of any marital or other relationship, domestic responsibilities or financial obligations, may legitimately be regarded as affecting the work performance, capacity or suitability for appointment or promotion of that person. In those circumstances, it is conceivable that an assessment of work performance, capacity or suitability for appointment or promotion might contain such information. If it did, it would be necessary to consider whether disclosure of that information would be unreasonable so as to render the assessment an exempt document by virtue of s 41(1) of the FOI Act.

It seems plain to me that the Full Court in Dyrenfurth did not overrule the views expressed by Beaumont J in Re Williams and in Young v Wicks. Their Honours were of the view that, in the ordinary course, statements in documents which relate to a person's work performance or capacity to work do not constitute information regarding his "personal affairs", though on occasions such documents may contain such information. Their Honours were of the view that, merely because a document relates to work performance or capacity to work, it is not necessarily excluded from being a document containing information about somebody's "personal affairs".

It is also plain from the reasons for judgment of the Full Court in Dyrenfurth that their Honours preferred not to substitute for the word "personal" where appearing in s 41(1) a word such as "private", though they recognised that according to the ordinary use of the word "personal" it connotes something private to the person, or, as it was put by Beaumont J in Re Williams at 221, the expression "personal affairs" refers "to matters of private concern to an individual".

See also the judgment of Wilcox J in Bleicher v Australian Capital Territory Health Authority (1990) 96 ALR 732, where his Honour carefully reviewed the authorities relating to the meaning of "personal affairs" in s 41(1) and s 12(2) of the FOI Act and observed (at 738) that: "... matters related to the pursuit of a vocation and 'personal affairs' are not necessarily mutually exclusive categories."

I respectfully agree with his Honour's observation.

The meaning of the expression "personal affairs" in s 41(1) of the FOI Act came before a Full Court of this court (Sheppard, Beaumont and Pincus JJ) in Wiseman v Commonwealth (24 October 1989, unreported). The Full Court noted that the Administrative Appeals Tribunal, from whose decision the appeal was brought to the Federal Court, had expressed the view that "personal affairs" referred to "matters of private concern to individuals", citing the words of Beaumont J in Re Williams. Their Honours did not themselves consider the meaning of the expression "personal affairs", but it is plain from their reasons for judgment that they saw no reason to disagree with the tribunal's statement.

The remaining decision to which we were referred by counsel in argument was that of Rowlands J, the then President of the Administrative Appeals Tribunal of the State of Victoria, in Re Griffiths and Victoria Police (1987) 2 VAR 595. The question in that case was whether information as to the work capacity or performance of the applicant contained in personnel assessment reports of the respondent was "information relating to the personal affairs" of a person within the meaning of s 39 of the Freedom of Information Act 1982 (Vic), a provision relevantly similar to s 41(1) of the Act. His Honour rejected a submission by the respondent that the phrase "information relating to the personal affairs of a person" did not comprehend information as to the work capacity or work performance of a person. He referred to the Shorter Oxford English Dictionary which provided, as its first definition of "personal", "of, pertaining to, concerning or affecting the individual person or self; individual; private; one's own". He said: "It is primarily the 'individuality' which creates the personal nature of personal affairs."

His Honour declined to follow the judgment of Beaumont J in Young v Wicks and said: "While we are not bound by decisions of the Federal Court, normally the tribunal would follow a decision of a judge of that court on a point where no authority within our own jurisdictional hierarchy existed. However, on this occasion I do not feel able to do so."

The learned President preferred "in general" the approach of members of the Administrative Appeals Tribunal in Re Wiseman and Department of Transport (1985) 4 AAR 83 to the approach of Beaumont J in Young v Wicks.

It is plain that Rowlands J regarded the decision of Beaumont J in Young v Wicks as adopting too restricted a view and as necessarily excluding documents relating to the pursuit of a vocation, work capacity or work performance from the category of documents relating to the "personal affairs" of a person under s 41(1). Rowlands J did not have the benefit of the reasons for judgment of the Full Court of this court in Dyrenfurth (a decision which was not given until some months later) in which, though not overruling Beaumont J's judgment in Young v Wicks, their Honours explained it as I mentioned earlier and in particular on the basis that information relating to a person's vocation, work performance or capacity may in some circumstances also answer the description of information relating to a person's personal affairs. This completes the review of the relevant authorities.

Although there is no inconsistency between the approach of Beaumont J in Re Williams and affirmed by him in Young v Wicks and the subsequent decisions of Full Courts of this court in Dyrenfurth, there are in my opinion differences of emphasis. Beaumont J treated, as the primary element in a person's "personal affairs", their private nature in the sense of something confidential to the person: see Re Williams at 221-2. Rowlands J in Re Griffiths appears to have adopted the view that information as to the work capacity or the work performance of a person may fall within the description of the person's personal affairs whether they are confidential to him or not. The Full Court in Dyrenfurth was plainly mindful of these considerations when expressing its views, as demonstrated by the passages from their Honours' reasons for judgment already cited. For myself I prefer the view that the "personal affairs" of a person within the meaning of ss 41(1) and 12(2) of the FOI Act connotes information which concerns or affects the person as an individual whether it is known to other persons or not. For example, a document may contain statements about a person's private life in the sense of his personal life which is widely known in various sections of the community. Something may be notorious, but its notoriety does not deprive it of the character of information relating to the person's "personal affairs". Such a document would therefore prima facie answer the description of one which relates to the "personal affairs" of a person within s 41(1). Whether any disclosure of the information would be an "unreasonable disclosure" within s 41(1) is a different question. If something is notorious about a person and recorded in a document, this may provide in a given case cogent evidence to justify the finding that its disclosure would not represent an "unreasonable disclosure" of the information; but that is a different question from the first question of what constitutes information relating to the "personal affairs" of a person. I agree with the Full Court in Dyrenfurth that it would be inappropriate to attempt to define the meaning of "personal affairs" in some definitive way. It would be unwise to substitute for the word "personal" some other word such as the word "private" because one generally accepted meaning of the word "private" is confidential or not widely known. In my opinion a person's affairs may be personal to him notwithstanding that they are not secret to him. In conclusion on this point I observe that in s 3, which states the object of the FOI Act, reference is made (in s 3(1)(b)) to the "private" affairs of persons. I do not regard that circumstance as confining the meaning of "personal affairs" in s 41(1) to affairs that are private in the sense of secret to the person.

In this case the tribunal said (in para 10 of its reasons): "However, clearly in considering whether a person's personal affairs would be disclosed it is necessary to consider whether the matters which would be disclosed are of a private nature relating to the individual, as distinct from being of a business nature or relating to his or her career."

In my view this poses too narrow a test. However, notwithstanding that the tribunal applied this test, it reached the conclusion that the relevant documents satisfied the statutory description in s 41(1) of documents which contained information relating to the "personal affairs" of a person. Had too wide a test been applied then a serious question would arise as to whether the tribunal had fallen into an error of law which vitiated its decision. I am of the opinion that the tribunal's test, though too narrow, did not lead it into error.

There is a real question as to whether the name and telephone number of a person can answer the description of "information relating to the personal affairs" of that person under s 41(1). Viewed as an abstract conception I would be inclined to the view that it could not, but such questions are not considered by courts in the abstract. The present case must be approached on the basis that the relevant documents containing the deleted material state the names, addresses and telephone numbers of persons making the calls or of the subscriber. Plainly enough it would be revealed from the documents when the telephone calls were made, the telephone number from which they emanated, the name of the subscriber, and, at least in some cases the name of the cALL ER and perhaps a pattern of telephone calls.

The words "relating to" or "in relation to" are of the widest import and in the context of s 41 it is enough that the information relates to a person's personal affairs. It is plain that when one has regard to the information contained in confidential Exs 2 and 3, the revelation of the information in the documents for which exemption is claimed (Ex 1), would reveal, not only the identity of the cALL ER and subscriber, but the reasons asserted for the making of the telephone calls. Plainly the information deleted from Ex 1 answers the statutory description of information which relates to the "personal affairs" of a person.

I reject the argument that, because the telecommunications services operated by the respondent involve the use of a public utility and because the appellant has been telephoned over that utility, the otherwise personal affairs of the subscriber or cALL ER have been placed in the public arena. There is no substance in this argument. A telephone call between persons may be personal in the ordinary sense of the word notwithstanding that the telephone facility is owned by a public utility and documents may record information which relates to a person's "personal affairs" whether the telephone utility is publicly owned or not.

I agree with Ryan J that the tribunal has not been shown to have erred in its finding that the relevant document contained information the disclosure of which would involve information relating to the "personal affairs" of a person or persons.

I turn to the question whether any such disclosure would involve the "unreasonable disclosure" of that information. Counsel for the appellant argued that the tribunal had failed to consider, or properly consider, that the "nuisance" telephone cALL ER or cALL ERs had arguably committed an offence under s 86 of the Telecommunications Act 1975 (Cth), which makes it an offence for a person to use a telecommunication service for the purpose of harassing another person and imposes a penalty of $1000 or imprisonment for six months.

If documents contain information which could provide valuable evidence or lead to evidence that would be useful or material in establishing the commission of an offence under the law, that is a matter which in my view may be taken into account in determining whether the disclosure of the information would be unreasonable under s 41(1). In this case it is clear from the transcript of proceedings before it that the tribunal was aware of the provisions of s 86 and that the Deputy President had this in mind when considering the question of unreasonable disclosure. Ryan J, correctly in my view, so held. I also agree with Ryan J that this was not a consideration of the kind that, having been taken into account, would have compelled the tribunal to reach a conclusion different from that which it did. Prosecutions for offences of the kind to which s 86 is directed must be brought within 12 months of the commission of the offence: s 21(1)(b) of the Crimes Act 1914 (Cth). As the last of the alleged "nuisance calls" was made in June 1987, the question of prosecution must have been academic at the time the matter was heard by the Deputy President.

It was also argued on behalf of the appellant that considerations of public policy against concealing the identity of persons who commit offences under s 86 were not considered by the tribunal in this case and the failure to do so vitiated its decision. Counsel relied for this argument upon the same arguments as those to which I have already referred with respect to s 86. The same reasons lead to the conclusion that this argument must be rejected.

This is not an appropriate case in which to examine definitively the circumstances that may constitute "the unreasonable disclosure of information" relating to a person's "personal affairs" because the argument before us proceeded on the limited basis outlined previously. It is sufficient for present purposes to say that "every person" has a "legally enforceable right to obtain access" to documents under the FOI Act: s 11. There is no requirement that the person seeking access have a proprietary or any other interest in documents or the information contained in them. The object of the Act, as expressed by s 3, is to give the "Australian community" the right of access to information in the possession of the Australian Government. What is "unreasonable" disclosure of information for purposes of s 41(1) must have as its core public interest considerations. The exemptions necessary for the protection of "personal affairs" (s 41) and "business or professional affairs" (s 43) are themselves, in my opinion, public interest considerations. That is to say, it is not in the public interest that the personal or business or professional affairs of persons are necessarily to be disclosed on applications for access to documents. The exemption from disclosure of such information is not to protect private rights, rather it is in furtherance of the public interest that information of this kind is excepted from the general right of public access provided the other conditions mentioned in ss 41 and 43 are satisfied. An examination of the other provisions of Pt IV of the Act concerning exempt documents confirms this approach.

Before parting from the case there is a final observation I wish to make. The FOI Act is, as its preamble states, "an Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies". The object of the Act is stated in s 3 as being to enable Australians to have access, as far as is possible, to information in the possession of the Federal Government by making available to the public information about the operations of departments of the Commonwealth and its public authorities and by creating a general right of access to information in documentary form in the possession of ministers, departments and public authorities. But, as s 3 itself recognises, there are limitations upon these rights of the Australian community which are expressed as being "necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities".

This case is an example of the legislative recognition in s 3 of both the right of persons to gain access to information in documents in the possession of the Commonwealth, yet the limitation on the disclosure of information relating to a person's personal affairs: s 41(1). The determination by the tribunal of the question of whether the documents for which exemption was claimed in this case are in law exempt documents involved that question being determined without the appellant having access to the documents or so much thereof as contain the relevant information relating to the personal affairs of persons.

It offends a right thinking person's sense of fairness and justice that citizens may not have access to important documents which are available to their opponents or available to the Government and which may be before the tribunal and that their rights are to an extent determined in camera. Although this is an unsatisfactory nature of the proceedings, it is inevitable. The right of the public to gain access to information in the possession of the Government of the Commonwealth must necessarily be subject to limitations and they are recognised throughout the Act, including Pt IV, which includes as exempt documents, documents affecting national security, defence or international relations (s 33); documents affecting relations with States (s 33(a)); Cabinet documents (s 34); Executive Council documents (s 35); and documents subject to legal professional privilege (s 42). It is the price that the community must pay for the considerable benefit of having a statutory right of access to official documents of the Government of the Commonwealth and of its agencies. But the exclusion of applicants from access to documents, although necessary in cases such as the present, must be treated with great care by tribunals before whom questions arise under the FOI Act.

I would dismiss this appeal.

The question of costs arises. Ryan J made no order as to the costs of the proceedings before him. The crucial consideration which guided him was expressed by him in these terms: "The existence of this litigation and the fact that it has progressed to this stage is due in large measure to aspects of the freedom of information legislation which have created expectations in the applicant. Those expectations have, in the event, been disappointed in circumstances in which it has not been possible to expose fully to the applicant or his counsel the reasoning of the AAT or of this court or the facts upon which that reasoning has been based."

Considerations of the kind to which his Honour adverted carry less weight on the question of costs of this appeal because the appellant has already been afforded an opportunity to have his case considered before the primary judge. There is a limit under our legal system to appellants pursuing unsuccessful appeals without suffering orders for costs against them. Nevertheless, it is as true on the appeal to this Full Court as it was before Ryan J that "it has not been possible to expose fully to the applicant or his counsel the reasoning of the AAT or this court or the facts upon which that reasoning has been based".

Also, as mentioned earlier, there was confusion during the course of argument before us as to precisely what documents, for which exemption was claimed under s 41, had been before the tribunal and Ryan J; as to the status of Exs 2 and 3; and, in particular, whether Ex 3 had been represented to the tribunal and Ryan J by the respondent (in all good faith) as being one of the documents for which exemption was claimed. It was not until the latter stages of argument before us that this confusion was removed. In all the circumstances I would make no order as to the costs of the appeal.