Re CARE Inc v Andrew Menzies and Waltons Credits Limited [1987] FCA 4 (16 January 1987)

FEDERAL COURT OF AUSTRALIA

Re: C.A.R.E. INC.
And: ANDREW MENZIES and WALTONS CREDITS LIMITED
No. ACT G60 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.

CATCHWORDS

Administrative Law - judicial review - Application for credit provider's licence - Objection to grant of unconditional licence by publicly funded association - Hearing by Australian Capital Territory Credit Tribunal - Decision not to admit certain testimony to inquiry - Whether Tribunal erred in law in so deciding - Whether Tribunal's opinion that material would be of no assistance in its deliberations sufficient to warrant exclusion - Decisions to require production of documents in answer to summonses issued by the Tribunal at request of applicant for licence - Whether summons may be issued to objector to produce material on which it does not seek to rely - Whether summons procedure being used for an impermissible purpose - Whether public interest immunity protected material from disclosure.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Credit Ordinance 1985 (A.C.T.), ss.155, 156, 158, 159, 160, 161, 162, 184, 192-5, 198, 200, 264

HEARING

CANBERRA
16:1:1987

Counsel for the applicant: Mr T. Lynch

Solicitor for the applicant: Mr D. Fleming

Solicitor for the first respondent: Australian Government Solicitor

Counsel for the second respondent: Mr P.L. Dodson

Solicitor for the second respondent: Dawson Waldron

ORDER

The application be dismissed.

The applicant pay the costs of the respondents of the application.

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

DECISION

The Credit Ordinance 1985 (A.C.T.) ("the Ordinance") is described by its long title as an Ordinance relating to the provision of credit, the regulation of contracts providing credit and the licensing of persons in connection with the provision of credit. It is necessary to refer to a limited number of its provisions in order to understand the issues that arise upon this application by C.A.R.E. Inc. under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

2. The substantive provisions of the Ordinance, with some exceptions immaterial for present purposes, came into operation on 28 February 1985 (see Commonwealth of Australia Gazette No. S59 of 27 February 1985). Part XI deals, inter alia, with the licensing of credit providers. Subject to the Ordinance, it is an offence for a person, not being the holder of a credit provider's licence, to carry on a business of providing credit (sub-s.155(1)) or to hold himself out as carrying on such a business (sub-s.155(2)). Exemptions from the licensing provisions are prescribed (see s.156) but they are not relevant for present purposes.

3. A credit provider's licence authorises the licensee to carry on a business of providing credit under the name or names specified in the licence, subject to and in accordance with the Ordinance and any conditions and restrictions to which the licence is subject. By virtue of s.158, an application for such a licence may be made by a body corporate if all the persons concerned in the management of the body corporate are of or over the age of 18 years. Such an application may be made to the Australian Capital Territory Credit Tribunal ("the Tribunal") which is established by s.184 with such jurisdiction, powers and functions as are conferred by or under the Ordinance. Where an application for a licence has been made, the Registrar of the Tribunal is obliged to send a copy of the application to the Director of Consumer Affairs for the Australian Capital Territory with a request in writing that the Director make such inquiries with respect to the applicant and the application as the Registrar specifies in the request (sub.s.159(1)). The Director is to prepare a report on the results of his inquiries and submit the report to the Tribunal (sub.s.159(2)). As soon as practicable after the Director submits his report on the application, the Registrar is required to publish, in a newspaper circulating generally in the Territory, a notice giving particulars of the application (sub-s.159(4)).

4. Section 160 provides:

"(1) At any time before the expiration of
the period of 14 days immediately following
publication of a notice under sub-section 159(4)
with respect to an application for a licence, or
within such longer period as the Tribunal in a
particular case allows, the Director may, with
the consent of the Minister, and any other person
may, lodge with the Tribunal an objection in
writing to the granting of the application if the
objection complies with sub-section (2).

(2) An objection complies with this
sub-section if -

(a) it specifies the ground of the
objection;

(b) the ground of the objection is a ground
on which the Tribunal is required to
refuse an application for a licence; and

(c) the Director or other person making the
objection has, before the expiration of
the period referred to in sub-section
(1), served on the applicant a copy of
the objection."

5. Sub-section 161(4) obliges the Tribunal to refuse an application for a licence made by a body corporate if it appears to the Tribunal that -

"(a) a person concerned in the management of
the body corporate has not attained the
age of 18 years;

(b) the body corporate is disqualified from
holding a licence;

(c) the body corporate does not have, or is
not likely to continue to have,
sufficient financial resources to enable
it to carry on business pursuant to the
authority that would be conferred by the
licence if it were granted;

(d) the officers of the body corporate are
such that it would not have sufficient
expertise to enable it to carry on such
a business;

(e) an officer of the body corporate is
disqualified from being an officer of a
body corporate that is the holder of a
licence; or

(f) having regard to the circumstances of
any involvement of -

(i) the body corporate;

(ii) a director of, or person
concerned in the management of,
the body corporate; or

(iii) any person other than an officer
of the body corporate who, in the
opinion of the Tribunal, has
control, or substantial control,
of the body corporate,

in any other business undertaking or
commercial venture, and to any other
matter the Tribunal considers relevant,
the granting of the licence would not be
in the interests of persons who deal
with credit providers or finance
brokers, as the case may be."

An application for a licence is not to be refused on a ground specified in paragraphs (4)(c) to (f) (inclusive) unless the Tribunal is satisfied that the ground has been made out after it has informed the applicant of the ground and has held a hearing with respect to the application and has afforded the applicant and any person who, in accordance with s.160, has lodged an objection on that ground, an opportunity to appear at the hearing and to make submissions and adduce evidence (sub-s.161(5)). If a hearing is, pursuant to sub-s.161(5) required to be held with respect to the application, the Tribunal is, subject to sub-s.161(4), to grant the application for a licence as soon as practicable after the conclusion of the hearing (sub-s.161(1)). A licence is subject to any prescribed conditions and restrictions and any conditions and restrictions imposed by the Tribunal (s.162).

6. For the purpose of considering an application for a credit provider's licence, the Tribunal is to be constituted by the Chairman and two other members (sub-s.192(2)). Sections 193 and 194 provide:

"193. (1) Subject to section 196, a
question of law arising in proceedings before the
Tribunal (including the question whether a
particular question is one of law) shall be
decided in accordance with the opinion of the
Chairman.

(2) Subject to sub-section (1), where the
members constituting the Tribunal for the
purposes of particular proceedings are divided in
opinion as to the decision to be made on any
question, the question shall be decided according
to the opinion of the majority.

194. (1) In proceedings before the
Tribunal -

(a) the Tribunal is not bound by the rules
of evidence but may inform itself on any
matter in such manner as it thinks
appropriate;

(b) the procedure of the Tribunal is,
subject to this Ordinance and any other
law in force in the Territory, within
the discretion of the Tribunal; and

(c) the proceedings shall be conducted with
as little formality and technicality,
and with as much expedition, as the
requirements of this Ordinance and the
substantial merits of the case permit.

(2) In relation to proceedings before the
Tribunal, the Chairman -

(a) may give directions relating to
procedure that, in the opinion of the
Chairman, will enable costs to be
reduced and will help to achieve a
prompt hearing of the matters in issue
between the parties to the proceedings;
and

(b) may request a report from, or other
assistance by, the Director."

Pursuant to s.195, the Tribunal may, if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matters or for any other reason, direct that a hearing or part of a hearing before it take place in private and may prohibit or restrict the publication or other disclosure of evidence given before the Tribunal and of any submission made to, or other document received in evidence by, the Tribunal in relation to the proceedings.

7. Section 198 provides:

"(1) The Chairman shall fix a time and
place for the holding of proceedings before the
Tribunal and the Registrar shall thereupon serve
on each party to the proceedings a notice
specifying the time and place so fixed and the
matters to which the proceedings relate and
directing the party to attend at that time and
place.

(2) The Tribunal shall give each party to
proceedings before it a reasonable opportunity to
call or give evidence, examine or cross-examine
witnesses and make submissions to the Tribunal.

(3) If a party to proceedings before the
Tribunal on whom a notice has been served in
accordance with sub-section (1) fails to attend
at the time and place specified in the notice,
the proceedings may be held in the absence of the
party."

8. Sub-section 200(1) provides:

"(1) The Registrar shall, at the direction
of the Chairman in relation to proceedings before
the Tribunal or at the request of a party to any
such proceedings, issue a summons requiring any
person to attend the proceedings at a time and
place specified in the summons and then and there
to give evidence and produce any record in the
person's custody or under the person's control
that the person is required by the summons to
produce."

9. Immediately before the commencement of Part XI of the Ordinance Waltons Credits Limited ("Waltons"), the second respondent in the present proceeding, was registered as a money lender under the Money Lenders Ordinance 1936 (A.C.T.). By virtue of the transitional provisions contained in the Ordinance, Waltons was, on and after the commencement of Part XI, deemed to be the holder of a licence as a credit provider under the Ordinance (sub-s.264(1)). As such, Waltons was entitled to make application for a credit provider's licence under the Ordinance (sub-s.264(2)) and it in fact made such application within the prescribed time. The effect of making such an application is that Waltons is deemed to continue to be the holder of a licence as a credit provider until the application is determined by the Tribunal (sub-s.264(4)).

10. C.A.R.E. Inc. ("C.A.R.E.") is an association of persons incorporated pursuant to the provisions of the Associations Incorporation Ordinance 1953 (A.C.T.). Its objects, as set out in its constitution, are:

"(1) The provision of a range of compatible
self-help and developmental services for
people dependent on moderate to low
income.

(2) In an atmosphere of dignity, hope and
self-help to educate support and
encourage people to an awareness of
their rights and obligations their
capabilities and personal resources. To
assist people to achieve their optimum
income security and economic stability.

(3) To offer training to others working in a
compatible field with a view to creating
an awareness of the impact on family
functioning of long term financial
instability, and to share techniques for
improving such families financial
stability.

(4) To undertake and share relevant
research."

According to the affidavit of Judith Power, who describes herself as the director of C.A.R.E., the association provides financial, credit and debt counselling to consumers in receipt of moderate to low annual incomes and individual consumer and community consumer education with respect to financial and credit matters and conducts research, prepares submissions for legal and other reforms and undertakes initiatives with respect to the administration of credit and financial matters.

11. C.A.R.E., relying upon par.(f) of sub-s.161(4), lodged with the Tribunal an objection in writing to the granting of an unconditional credit provider's licence to Waltons asserting that the granting of such a licence would not be in the interests of persons dealing with Waltons for the following reasons:

"(1) Collector's Conflicts

Waltons employ persons to collect instalment
payments and arrears. Those same persons are
authorised to make door-to-door sales. Those
persons are paid on the basis of a commission on
sales. This duality of functions leads to a
considerable conflict against the interests of
these consumers. By having arrears these
consumers have shown themselves susceptible to
overcommitment. These consumers are often
pressured to buy goods so as to avoid enforcement
action against them for their arrears. By its
employment policy Waltons creates the situation
where the very people who should be spared sales
pressure are put in the front rank to receive it.
The collectors are given the self interest which
necessarily produces unreasonable pressure on
those least able to resist it. Waltons is able
to argue that the Door-to-door Sales Ordinance
1969 does not apply to sales made by these
collectors because the purchaser has made an
unsolicited request that Waltons call to their
home to collect instalments.

(2) Overcommitment

Low income people have limited choices as
consumers. Credit given by Waltons is largely,
if not, exclusively in respect of goods emanating
from Waltons Limited. Waltons Limited sells
goods which in general are aimed at the mass
market for the lower socio-economic group which
has less capacity to pay then others.

Health and Welfare agencies will vouch that there
is a high rate of accounts with Waltons Limited
held by their clients. Low income people are
vulnerable to even minor fluctuations in income
or expenditure. They are more likely to incur
account arrears. Waltons generally has the right
to charge interest on arrears and extend the
contract period whereby the consumer pays more
interest. The consumers also pay the increased
costs which result from legal recovery action and
may possibly result in loss of property. These
are the people on whom the collectors call.

(3) Pressure

C.A.R.E. Incorporated has made agreements
with Waltons on behalf of its clients for them to
pay off arrears. C.A.R.E. has asked that
Walton's collectors cease calling on a number of
clients. Collectors have continued to call and
pressure the consumer into making fresh purchases
even though agreed payments are being paid to
Waltons directly by a credit union, building
society or bank."

12. The hearing of Walton's application for a credit provider's licence commenced before the Tribunal constituted by Mr A.C.C. Menzies, the first respondent, and two members on 30 July 1986 and continued on the following day when it was adjourned generally so that C.A.R.E. might, if so advised, commence legal proceedings in respect of certain decisions made during the course of the hearing. On 22 August 1986 C.A.R.E. filed in this Court an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review in respect of the following decisions:

1. A decision not to set aside a summons
dated 28 July 1986 issued pursuant to
sub-s.200(1) of the Ordinance requiring
the proper officer of C.A.R.E. to appear
before the Tribunal and to produce the
documents therein described;

2. A decision not to set aside a summons
dated 28 July 1986 issued pursuant to
sub-s.200(1) of the Ordinance requiring
the proper officer of Welfare Rights
Centre (A.C.T.) to appear before the
Tribunal and to produce the documents
therein described;

3. A decision not to admit to the inquiry
any testimony by a witness as to an
assessment or a generalisation or an
expert opinion based on contact with a
customer or customers of Waltons;

4. A decision not to admit to the inquiry
affidavits by Allan Jeffrey James and
Rita Anne James; and

5. A decision not to admit to the inquiry
part of a public report into
homelessness in the Australian Capital
Territory.

It may be said, at once, that C.A.R.E. did not pursue its application for relief in respect of the decisions referred to in sub-pars 4 and 5 above and nothing further need be said about them.

13. It appears from the transcript of the proceedings before the Tribunal on 30 and 31 July 1986, which is in evidence before me, that, at a preliminary hearing sometime earlier, particulars were sought by Waltons of the specific cases to which C.A.R.E. would refer as illustrative of the matters on which it would rely in support of its objection and that particulars of a number of cases, identified by the letters "A" to "I", were furnished. It further appears that the name of the customer concerned was not stated in all of the cases identified.

14. When the hearing commenced on 30 July 1986, reference was made to the summonses issued to the proper officer of C.A.R.E. and the proper officer of Welfare Rights Centre (A.C.T.). The summons addressed to the proper officer of C.A.R.E. required the production of all letters, notes and memoranda of C.A.R.E. or passing between C.A.R.E. and any customer of Waltons dealing with that customer's credit transaction with Waltons. The summons addressed to the proper officer of Welfare Rights Centre (A.C.T.) required the production of all letters, notes and memoranda of that organisation or passing between that organisation and any customer of Waltons dealing with that customer's credit transaction with Waltons.

15. Counsel for C.A.R.E. applied to have both summonses set aside and outlined his submissions in support of the application. The issue was not then resolved but deferred for further consideration later in the proceedings.

16. Oral evidence was then adduced by C.A.R.E. in support of its objection. The first two witnesses were, or had been, customers of Waltons and their evidence concerned their obtaining of credit from that company and of their dealings with home service representatives employed by the company (variously referred to as travellers or collectors). They also gave evidence of having consulted C.A.R.E. in relation to their financial problems. It is unnecessary for present purposes to refer to this evidence in any more detail.

17. The next witness was Judith Carol Pearson who said she was employed by C.A.R.E. as senior financial counsellor and had been so employed since 1983. Prior to that time, from 1978 to 1983, she had worked with the Smith Family, first as a welfare worker and later as a financial counsellor. She gave evidence that while working with the Smith Family she had, on average, interviewed about eight persons a day. She estimated that of these half would have had accounts with Waltons. With C.A.R.E. she had a current case load of 92 people of whom a third had accounts with Waltons.

18. The witness said that, in the course of her work, she had had occasion to discuss with those who were seeking assistance and who had accounts with Waltons their dealings with that company and its travellers and collectors. She was asked whether she was able to draw any conclusions from the common or recurring features that she had identified in the course of those discussions. Having answered that question in the affirmative, she was asked to state what were those conclusions. The question was objected to and, after hearing submissions, the Tribunal determined that, while it was prepared to receive evidence from the witness giving her recollection of what was said at interviews with customers of Waltons (and to receive that evidence, as it subsequently appeared, without the names of the customers being disclosed), it was not prepared to accept evidence in which the witness would be making a generalised statement or assessment based on her recollection of the various interviews. It was said that, in doing so, the witness would be assuming the function and role of the Tribunal. This is one of the decisions, that numbered 3 in the application to this Court, in respect of which C.A.R.E. seeks an order of review.

19. The proceedings continued before the Tribunal with oral evidence in support of the objection being adduced from two other persons who had obtained credit from Waltons, a welfare worker performing duty at a public housing estate, a counsellor and welfare officer at the Salvation Army Family Welfare Bureau, a senior child care worker and the Director of Consumer Affairs. Further oral evidence was also given by Judith Carol Pearson detailing her recollection of conversations with persons, otherwise unidentified, who had accounts with Waltons and who had sought the assistance of C.A.R.E. In the course of her evidence she said that C.A.R.E. had, after searching its files, approached more than 20 persons to give evidence before the Tribunal but all except four were unwilling to do so. Counsel for C.A.R.E. indicated that further oral evidence was to be adduced, including evidence from Judith Power, the director of C.A.R.E.

20. During the course of the oral evidence, counsel for Waltons renewed his application for production to the Tribunal of the documents referred to in the summonses directed to the proper officer of C.A.R.E. and the proper officer of Welfare Rights Centre (A.C.T.). After hearing further submissions on the question, a decision was made that the documents referred to in each summons should be produced. In announcing the decision, the chairman said that, so far as the summons directed to the proper officer of C.A.R.E. was concerned, C.A.R.E. had raised, and led evidence upon, a broad range of issues relating to the conduct of Waltons and that, while conscious of the concern that C.A.R.E. had to maintain the confidentiality of the communications made to it by those seeking its assistance, it was appropriate that the documents described in the summons be produced. In relation to the summons addressed to the proper officer of Welfare Rights Centre (A.C.T.), production of the documents therein referred to was also considered appropriate as it appeared from correspondence before the Tribunal that that organisation had been concerned, in a similar way to C.A.R.E., in dealing with problems raised by customers of Waltons. The chairman noted, however, that that organisation also acted as solicitor for C.A.R.E. and he indicated that, if any question of legal professional privilege arose in relation to the documents referred to in the summons, that question could be dealt with at the proper decision time. It was acknowledged during the course of the proceedings before the Court that no claim was being made that any of the documents were the subject of legal professional privilege.

21. The Tribunal agreed to defer the actual production of the documents so that C.A.R.E. might pursue the legal challenge which it then foreshadowed to the decisions requiring production.

22. I shall deal, first, with the application for an order of review in respect of the decision of the Tribunal that, while it would receive oral hearsay evidence from Judith Carol Pearson of matters discussed with her by otherwise unidentified customers of Waltons concerning their dealings with that company and its employees, it would not receive evidence of conclusions concerning the conduct of Waltons which may have been drawn by the witness from those discussions or of generalised statements or assessments indicative of the way in which Waltons carries on its business of providing credit based on her recollection of what had been communicated to her in the various conversations with those customers.

23. The submission made in support of the application was based on the proposition that the material which the Tribunal did not admit was relevant to the question which it had to determine and was of probative value. It was then said that, although the weight to be given to the material once received was entirely a matter for the Tribunal, it was under an obligation to receive it and its failure to do so amounted to an error of law.

24. I am unable to accept this submission. Under the relevant statutory provisions the Tribunal is not bound, in the conduct of the proceedings before it, by the rules of evidence. It may inform itself on any matter in such manner as it thinks appropriate (sub-s.194(1)). On a fair reading of what the chairman of the Tribunal said when announcing the decision, the Tribunal was of the opinion that the material which C.A.R.E. sought to place before it would be of no material assistance to it in determining the question whether a credit provider's licence should be issued to Waltons either unconditionally or subject to such conditions as the Tribunal might consider appropriate. It has not been demonstrated to my satisfaction that, in reaching that decision, the Tribunal travelled outside the proper limits of the discretion vested in it or that it otherwise committed any error of law. C.A.R.E. has shown no sufficient ground for relief in relation to that decision.

25. I turn now to the decisions requiring compliance by C.A.R.E. and by Welfare Rights Centre (A.C.T.) with the summonses directed respectively to the proper officer of each organisation.

26. It was submitted that the Tribunal had made an error of law in construing sub-s.200(1) of the Ordinance. This submission bore two aspects. First, it was said that that sub-section, on its proper construction, does not confer power to require an objector to the grant of a licence to produce material in addition to that which the objector might choose to place before the Tribunal in support of its objection. Attention was directed to sub-s.161(5) of the Ordinance which was said to create a prima facie right in an applicant to obtain the grant of an unconditional licence unless the material placed before the Tribunal by an objector warrants a refusal or the imposition of conditions. Therefore, so the argument ran, it is for the objector to determine upon what material it will rely to support its objection and any other material in its possession is irrelevant to the inquiry being undertaken by the Tribunal and cannot properly be made the subject matter of a summons under sub-s.200(1) of the Ordinance. It may be noted that, even if the above proposition were accepted, it would have no effect upon the summons addressed to the proper officer of Welfare Rights Centre (A.C.T.) though it seemed to be implicit in the submissions put by C.A.R.E. that the two organisations had such an identity of interests that whatever decision was reached in relation to the summons addressed to the proper officer of C.A.R.E. should be equally applicable to that addressed to the proper officer of the other organisation.

27. Secondly, it was said that the summons procedure was being used by Waltons for a purpose which was alien to that for which the procedure was provided in that the documents described in the two summonses were not being sought for the purpose of being tendered in evidence before the Tribunal. The true purpose of Waltons, so it was argued, was to ascertain what material relating to the dealings which the two organisations concerned may have had with customers of the company was in the possession of those organisations so as to assist Waltons in determining whether to adduce evidence on particular matters and to assist its counsel in cross-examining witnesses called on behalf of C.A.R.E. That purpose was described as being a purpose analogous to that served by the discovery of documents in curial proceedings inter partes and, as such, outside the purview of sub-s.200(1) of the Ordinance. Reference was made to McAuliffe v. McAuliffe (1973) 4 ACTR 9: cf. National Employers' Mutual General Association Ltd. v. Waind and Hill (1978) 1 NSWLR 372.

28. It does not appear to me to be necessary for the purposes of this application to determine what are the precise limits of the power vested in the Registrar of the Tribunal by sub-s.200(1) of the Ordinance and, in particular, whether there are any circumstances in which he may decline to issue a summons under that sub-section when requested to do so by a party to a proceeding before the Tribunal. It is unnecessary to do so because, whatever those limits may be, I can see no basis for concluding that the summonses issued at the request of Waltons and addressed to the proper officers of C.A.R.E. and Welfare Rights Centre (A.C.T.) respectively were not properly issued. There is, in my view, nothing to be found in the Ordinance which provides any warrant for limiting the general language of sub-s.200(1) so as to exclude from its purview a person who, pursuant to sub-s.160(1), has lodged with the Tribunal an objection to the granting of an application for a licence under sub-s.158(1). The legislative intention is clearly to give a very wide power to enable the Tribunal to be put in possession of any material relevant to the matters which it has to determine. To read down the provision in the manner suggested would tend to frustrate the obvious purpose of the provision.

29. A submission was put to the Tribunal that each summons is so wide as to be oppressive but that submission was not pursued in the present proceeding and was, indeed, expressly abandoned. It cannot be gainsaid that the documents the production of which is sought are clearly related to the grounds of the objection lodged on behalf of C.A.R.E. Those grounds are stated in very general terms with no details being given of specific instances on which C.A.R.E. relies. But it is reasonable to suppose that the grounds of objection are based, largely if not wholly, on communications made to C.A.R.E. and Welfare Rights Centre (A.C.T.). The general relevance of those communications to the issues that are being raised by C.A.R.E. in opposition to the application by Waltons is apparent and to suggest that the power conferred by sub-s.200(1) is not wide enough to enable their production to be required seems to me to be quite fanciful. Nor, having regard to the matters mentioned above, do I find any substance in the submission that the power conferred by sub-s.200(1) is being used for an impermissible purpose.

30. It was also submitted that the Tribunal was in error in failing to decide that the documents referred to in each summons were protected from production by the principle commonly referred to as public interest immunity. A claim was made in the most general terms that C.A.R.E. and Welfare Rights Centre (A.C.T.) were bodies which were entitled to claim public interest immunity in respect of all the documents of which production was required. Against the possibility that such a general submission would not find favour with the Court, an alternative submission was put that the Tribunal, in reaching the decision that the documents referred to in the summonses should be produced, had failed to weigh the competing public interests involved.

31. The general submission pointed to the role which the two organisations play in community affairs. Reference has already been made to the incorporation of C.A.R.E. and the terms of its constitution. The evidence before me also shows that C.A.R.E. is a publicly funded organisation, the only sources of its funds being donations and government grants. Its primary function is described as being the provision of counselling to consumers experiencing difficulties in the conduct and management of their financial responsibilities and consequently their family and social lives. It is further said that the proper provision of financial counselling requires a considerable degree of training in establishing relationships of personal trust and confidence with individual consumers. This is said to be of particular importance because the majority of consumers who seek assistance from C.A.R.E. are experiencing a serious emotional, social and economic crisis of which their relationship with one or more creditors is but one manifestation. It follows that the information disclosed to counsellors is frequently of a sensitive and personal nature and it may be accepted that, if effective assistance is to be provided, it is essential that such sensitive and personal information be disclosed. To facilitate this, persons seeking assistance are given a document which informs them that they have a right to absolute confidentiality.

32. Welfare Rights Centre (A.C.T.) is a limited company the full name of which is Welfare Rights and Legal Centre Limited. It is a publicly funded company which employs staff who provide advice and assistance in matters affecting the rights of persons in relation to federal income maintenance legislation, tenancy and consumer credit. It also undertakes programmes and initiatives in community legal education and research, involving proposals for law reform.

33. The first of the above submissions can be disposed of quite shortly. As I apprehend it, it requires acceptance of the proposition that the character of each of the organisations as a publicly funded body and the scope of the functions it performs are such that the public interest requires that all their documents of the kind referred to in the respective summonses be immune from disclosure. Counsel referred to D. v. National Society for the Prevention of Cruelty to Children [1977] UKHL 1; (1978) AC 171 and Aboriginal Sacred Sites Protection Authority v. Maurice (1986) 65 ALR 247 but those cases do not, in my opinion, support the broad proposition for which C.A.R.E. contended.

34. The essential concern of C.A.R.E. is to maintain the confidentiality of the names of those customers of Waltons who have sought assistance from it or from Welfare Rights Centre (A.C.T.) and of other material which would enable the identity of those customers to become known. Whether that concern properly relates to all the documents sought it is impossible to say as C.A.R.E. has not placed before the Court, and did not place before the Tribunal, any material identifying the documents which it and Welfare Rights Centre (A.C.T.) have in their possession of which the summonses require production. However, it may be inferred from the evidence given before the Tribunal and as supplemented before the Court that there is an element of public interest to be served in maintaining the confidentiality of the personal affairs of those who seek the assistance of either of the two organisations. Confidentiality of the material was pressed upon the Tribunal as a matter to be taken into account in deciding whether the summonses should be complied with and it is abundantly clear from what the chairman said when announcing the decision that the Tribunal did so. It was open to the Tribunal to take the view that, general allegations having been made that the business practices followed by Waltons in relation to those to whom it had provided credit were such as to require the imposition of conditions upon the grant of the licence applied for, it would assist in determining that issue if the documents the subject of the summonses were produced and the opportunity were afforded to Waltons to comment upon any allegations or complaints made therein. A fair reading of what the chairman said indicates that the Tribunal weighed the conflicting interests and determined that the public interest that the documents be produced outweighed the considerations of confidentiality. No error on the part of the Tribunal has, in my view, been demonstrated.

35. Before leaving this aspect of the matter, it should be noted that the only decision which the Tribunal has yet made is that the documents described in each summons should be produced, that is to say, produced to the Tribunal. It is apparent from what has taken place before the Tribunal that it is contemplated that Waltons will be given access to the documents. If access is given, it will be solely for the purpose of the proceedings before the Tribunal. Use of the documents for any other purpose would be quite improper - a matter to which the chairman adverted when announcing that the Tribunal required compliance with the summonses. As I have said, no formal decision has yet been made giving Waltons access to the documents - the occasion for doing so not having yet arisen as the documents have not been produced to the Tribunal. Access may, of course, be given unconditionally or subject to conditions and the Tribunal has ample power (sub-s.195(1)) to protect the confidentiality of the material consistently with the fulfilment of its public duty to determine the matter before it. It may, for example, limit access to the legal advisers of Waltons or, in addition, give access to a restricted number of employees of the company. Those are matters for the Tribunal when the hearing before it resumes.

36. For these reasons, the application is dismissed with costs.