CITATION: Fomiatti v University of Western Sydney [2005] NSWADT 245 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: General Division APPLICANT PARTIES: Luke Fomiatti RESPONDENT University of Western Sydney FILE NUMBER: 052385 HEARING DATES: 14/10/05, 26/10/05 SUBMISSIONS CLOSED: 10/26/2005 DATE OF DECISION: 11/01/2005 BEFORE: Wilson R - Judicial Member APPLICATION: Prohibition on publication or broadcast MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 CASES CITED: Walton v Momot (1997) NSWSC CA 17.04.97 (unreported) BC 9703067 REPRESENTATION: In person A Woods, solicitor ORDERS: 1. The interlocutory application for orders pursuant to s.75 of the Administrative Decisions Tribunal Act 1997 (NSW) is dismissed; 2. Part B of these reasons for decision is not to be published nor disclosed to any person or entity save the Respondent and its legal representatives and any other person to whom the Respondent should wish to make such disclosure and save the Tribunal's Members and Registry personnel ; 3. That the oral submissions put by the Respondent to the Tribunal during the absence of the Applicant as noted in these reasons be not disclosed to the Applicant and be not otherwise published in any form whatsoever; 4. That the submissions made by the Respondent to the Tribunal in the absence of the Applicant as noted in these reasons for decision and recorded in the sound recording of that part of the hearing in the Tribunal be not disclosed to the Applicant ; 5. That orders 2, 3 and 4 hereof are subject to any further order that the Tribunal may make, liberty being reserved to both parties to apply in this regard; 6. That liberty to apply is reserved to the Respondent to make further application pursuant to s.75 of the Administrative Decisions Tribunal Act 1997 as it may be so advised. REASONS FOR DECISION PART A: 1 These reasons for decision are in two parts. There is no restriction in relation to the publication or the disclosure of the contents of Part A. However, the contents of Part B of these reasons is prohibited from publication and disclosure to any person or entity save the respondent, its legal advisors and any other person to whom it may wish to make disclosure, and save the Tribunal and its Members and Registry staff. These orders have been occasioned by the procedural steps taken at the hearing of this interlocutory application on 26 October 2005. After hearing the evidence and the submissions on that day the Tribunal indicated that it was not minded to grant the orders sought and invited the respondent to make further submissions should it so wish. The reason for this was the possibility that the respondent, even though no application had been made to continue the hearing in the absence of the applicant, may have been constrained, to some extent at least, by being unable to make any reference to the information over which exemption was being claimed. Instructions were sought and the respondent applied to put further submissions to the Tribunal in the absence of the applicant. This application was granted with the consent of the applicant. Consequently, Part A of these reasons sets forth the Tribunal's decision in relation to the materials and submissions to which the applicant was privy whereas Part B sets forth the Tribunal's reasons for decision in relation to the materials and submissions to which the applicant was not privy. 2 The applicant has brought proceedings in this Tribunal seeking to review a decision made under the Freedom Of Information Act 1989. The respondent has claimed exemption from disclosure under that Act as to certain parts of documents. The substantive proceedings have undergone interlocutory steps: directions have been made in preparation for the hearing, and to preserve the exempt materials pending the Tribunal's final determination, and the matter is listed for hearing on 01 February 2006. 3 At a planning meeting on 20 September 2005 the respondent sought orders pursuant to s.75 of the Tribunal's enabling legislation. In the absence of evidence no orders were made that day pursuant to this section but the respondent was given liberty to apply further and, should this occur, was directed to file and serve evidence and an outline of argument 7 days prior to the hearing of any such further application. 4 A further hearing of an application by the respondent seeking orders pursuant to s.75 came on for hearing on 14 October 2005. On that day the respondent adduced evidence by way of affidavit and relied upon its written outline of argument. The applicant had only recently been served with these materials the day before the hearing and sought an adjournment by reason of this. This was granted and the matter was stood over for further hearing on, 26 October 2005. However, upon the evidence then adduced by the respondent an interim order was made on 14 October prohibiting both parties from publishing any report concerning the proceedings that is misleading in its content. This interim order was limited in time in that it would cease upon commencement of the resumed hearing listed for 26 October 2005. The interlocutory application then came on for further hearing on 26 October 2005. 5 The Tribunal's discretion pursuant to s.75(2) is expressed in broad terms as is shown by the words "or for any other reason" in the sub-section. However, it is not an unfettered discretion. The powers conferred may only be exercised in the event that the Tribunal is satisfied that there is a reason for their exercise. If the Tribunal does not undertake an investigation of whether there be reason for the making of the orders sought it will err in point of law. The opening words of the sub-section make this clear. 6 The sub-section does not expressly require that the orders may only be made in special or exceptional circumstances, although this may be a construction that is imposed at some future time when the question falls to be determined judicially (see for example the principles discussed in Walton v Momot (1994) SCNSW CA 17.04.97, BC 9703067). Whilst both parties proceeded upon the basis that the correct construction of s.75 (2) did require the existence of special or exceptional circumstances, the Tribunal has not found it necessary to decide this application upon the basis of this suggested requirement. Rather, the Tribunal has simply enquired as an initial step whether it is satisfied that there is reason to make the orders sought. The Tribunal is not so satisfied and consequently, the construction point has not arisen for determination in these proceedings. 7 The respondent has accepted that the orders it initially sought in relation to the eventual hearing of these proceedings should await the determination of the Tribunal Member who embarks on the hearing. Effectively this meant that the orders being sought now pursuant to s.75 could be limited to a prohibition on the publication of reports of these proceedings or a prohibition on the publication of information that would identify the person whose personal affairs are the subject of the exemption claim. 8 The evidence now before the Tribunal on this application consists of the affidavits of Vanessa Anderson sworn 12 October 2005, the affidavit of Andrea Thompson sworn 13 October 2005 and Exhibits "A" and "B" (both tendered by the respondent) and Exhibit "C" (tendered by the applicant). 9 This evidence shows that, after the planning meeting on 20 September 2005, the applicant published a newspaper article concerning these proceedings and, at a later stage, participated in an interview with a journalist who published a further article concerning these proceedings in another newspaper. The first article contained the statement that a particular document "is exempt from the Act according to (the respondent)". This statement was incorrect in that the respondent in fact only claims an exemption in relation to parts of that document. The applicant was aware that exemption was being claimed only as to parts of the document at the time this article was published. This article also contained the provocative statement "what have they got to hide". 10 The second newspaper article also concerned these proceedings in the Tribunal. In that article it was stated that a student newspaper had commenced these proceedings, whereas in point of fact it is the applicant who did so. The article also alleged that the respondent is endeavouring to prevent or limit public scrutiny by the stance it is taking in the proceedings without any reference to the other methods of public scrutiny of the respondent's affairs that are in place. It is also critical of the respondent's engagement of members of the legal profession in matters concerning students. Further, the respondent argued, the article is provocative. These factual matters are not in dispute, although their significance for the purposes of this application is. 11 The evidence also shows that the applicant has affiliations with several newspapers and that the student newspaper with which he is associated has guidelines, which are publicly available, which encourage contributions which are provocative and which use forceful and colourful language. The other provisions of these guidelines however, show that they have a balanced quality about them. 12 It is clear therefore, on this evidence, that it is more likely than not that the applicant will either publish, or have a hand in publishing, further newspaper articles reporting on these proceedings in the Tribunal as they progress. Most likely his motivation to do so has been enhanced by the bringing of this interlocutory application. In all probability such articles would be provocative, to the degree that the two published articles have been, in that they would be critical of the respondent's stance in the proceedings, would express views about the reasons why the respondent would adopt the position that it has and would invite a reader to adopt those criticisms and views. The content of any such articles could concern matters touching upon the proceedings to date and, equally, could touch upon matters revealed by the evidence and submissions already filed by the respondent and those yet to be filed and served, but only to the extent that such matters are made known to the applicant in the documents that are actually served upon him pursuant to the Tribunal's directions. Those directions contain provisions, which will enable the respondent to keep confidential the information, which is subject to the exemption claims, pending the Tribunal's ultimate determination. It is impossible to determine whether future publications would, or would not, be likely to contain factual errors or omissions and no finding can be properly made in this regard. 13 An inference is available from the evidence that the publication of further articles of like nature could persuade readers to be critical of the respondent's stance that certain information in the documents should not be disclosed and of the way that the respondent is conducting the litigation. The Tribunal is persuaded that this is the correct inference to draw in the circumstances. However, to find that future publications could have consequences over and above this would be to speculate rather than to draw proper inferences from the materials before the Tribunal. 14 However, these circumstances do not persuade the Tribunal that there is reason to make the s.75 orders that are sought. The confidentiality, at this stage, of the information over which exemption from disclosure is claimed is not at risk and there is no suggestion in the evidence, nor in the respondent's argument, that future publications could jeopardise a fair hearing of the proceedings. The Tribunal is unable to find on the evidence that, more likely than not, future articles would contain erroneous information that has significance. Equally the Tribunal is unable to find that there is the possibility of a consequence flowing from future publications that ought to be avoided by the making of an order pursuant to s.75. The consequence noted above that such articles could engender criticism of the respondent does not satisfy the Tribunal's that it is desirable that such an order should be made. PART B: (paragraphs 15 to 19 inclusive) Part B of these reasons for decision is prohibited from publication or broadcast under s 75 Administrative Decisions Tribunal Act 1997. ORDERS: 1.The interlocutory application for orders pursuant to s.75 of the Administrative Decisions Tribunal Act 1997 is dismissed 2. Part B of these reasons for decision is not to be published nor disclosed to any person or entity save the Respondent and its legal representatives and any other person to whom the Respondent should wish to make such disclosure and save the Tribunal's Members and Registry personnel 3. That the oral submissions put by the Respondent to the Tribunal during the absence of the Applicant as noted in these reasons be not disclosed to the Applicant and be not otherwise published in any form whatsoever 4. That the submissions made by the Respondent to the Tribunal in the absence of the Applicant as noted in these reasons for decision and recorded in the sound recording of that part of the hearing in the Tribunal be not disclosed to the Applicant 5. That orders 2, 3 and 4 hereof are subject to any further order that the Tribunal may make, liberty being reserved to both parties to apply in this regard 6. That liberty to apply is reserved to the Respondent to make further application pursuant to s.75 of the Administrative Decisions Tribunal Act 1997 as it may be so advised. 25/08/2006 - - Paragraph(s) 25/08/2006 - - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.