Cianfrano v Attorney General's Department of NSW
[2007] NSWADT 205
•6 September 2007
Set aside by Appeal:
CITATION: Cianfrano v Attorney General's Department of NSW [2007] NSWADT 205 DIVISION: General Division PARTIES: APPLICANT
Robert Cianfrano
RESPONDENT
Attorney General's Department of NSWFILE NUMBER: 063425 HEARING DATES: 5 April 2007 SUBMISSIONS CLOSED: 21 August 2007
DATE OF DECISION:
6 September 2007BEFORE: Montgomery S - Judicial Member CATCHWORDS: access to documents - adequacy of search - access to documents - business affairs - access to documents - legal professional privilege - access to documents - personal affairs - Freedom of Information Act - access to documents - adequacy of search - Freedom of Information Act - access to documents - business affairs - Freedom of Information Act - access to documents - legal professional privilege - Freedom of Information Act - access to documents - personal affairs MATTER FOR DECISION: Jurisdiction LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150
Calderbank v Calderbank 1976 Fam 93
Cianfrano v Chief Executive Officer, NSW State Rail Authority [2004] NSWADT 223
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Druett v Director General, Department of Community Services [2003] NSWADT 127
Hutchinson v Director Genera!, Roads and Traffic Authority [2004] NSWADT 48
Marrickville Commercial College Ltd v NSW Vocational Education and Training Accreditation Board [2001] NSWADT 134
McGuirk v University of New ,South Wales (GD) [2007] NSWADTAP 4
Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52
Parsonage v Office of the Board of Studies [2007] NSWADT 10
Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11
Wood & Anor v Bergman (No 2) [2003] NSWADT 175REPRESENTATION: APPLICANT
RESPONDENT
In person
J McDonnell, SolicitorORDERS: 1. The application is dismissed for want of jurisdiction. ; 2. Each party is to bear its own costs
1 This application relate to Mr Cianfrano’s requests to the Attorney General's Department of NSW (“the Department”) seeking access to documents under the Freedom of Information Act 1989 ("the FOI Act”). The application was in the following terms:
- "On or about the 28 October 2005, the Crown Solicitor's Office provided to State Records Tax Invoice No 194085 for the sum of $1117.75 (GST free) Re advice SMA Records. To our professional costs of acting in this matter from 14 March 2005 to 21 September 2005 our fees (GST Free).
The documents I seek in this FOI will be documents that were appropriate to or added to the arrangements the professional costs to the matter referred to in the above correspondence fell within the category of (Core Work).
The documents are to include the tax ruling (ATO) that Mr Bradley Rowe (the work supervisor) used to empowered him to provide (GST Free) legal advice to State Records NSW (the Client),"
2 The Department identified six documents falling within the scope of the request and made a purported determination (“the determination”) to release four of those documents in full and to partially release the remaining two documents. The Department asserted that the withheld parts of those documents were exempt under clause 7(1)(b) and (c) of Schedule 1 to the FOI Act. It is common ground that the determination was made five days after the 21 days time limit prescribed by section 18(3) of the FOI Act. Pursuant to section 24(2) of the FOI Act, the Department was deemed to have refused the application.
3 On the same day that the Department made the determination, Mr Cianfrano filed an application with the Tribunal for review of the deemed refusal his application. He did not request an internal review of the determination pursuant to section 34 of the FOI Act prior to filing his application with the Tribunal.
4 The Department has submitted that pursuant to section 53(2)(a) of the FOI Act the Tribunal has no jurisdiction to hear the application. The Department has also sought an order for costs.
5 The jurisdictional issue is to be determined as a preliminary issue. Each of the parties made written submissions on the jurisdictional point and also in regard to the costs application.
Applicable Legislation
6 The expression "principal officer" is defined in section 6 of the FOI Act as follows:
- "principal officer" means:
(a) in relation to a Government Department-the Department Head of the Department, or
(b) in relation to a public authority for which the regulations declare an office to be the principal office in respect of the authority-the holder of the office, or
(c) in relation to a public authority for which the regulations do not so declare:
- (i) in the case of an incorporated body that has no members-the person who manages the affairs of the body, or
(ii) in the case of a body (whether incorporated or unincorporated) that is constituted by one person-the person who constitutes the body, or
(iii) in the case of a body (whether incorporated or unincorporated) that is constituted by 2 or more persons-the person who is entitled to preside at any meeting of the body at which the person is present, or
(e) in relation to a public office-the holder of the office.
7 Section 18 of the FOI Act provides in part:
- 18 Persons by whom applications to be dealt with etc
(1) An application shall be dealt with on behalf of an agency:
(a) by the principal officer of the agency, or
(b) by such other officer of the agency as the principal officer of the agency may direct for that purpose, either generally or in a particular case.
(2) Notwithstanding subsection (1), an application for access to a local authority’s document shall be dealt with on behalf of the authority:
(a) by the principal officer of the authority, or
(b) by such other officer of the authority as the authority may, by resolution, direct for that purpose, either generally or in a particular case.
(3) An application shall be dealt with as soon as practicable (and, in any case, within 21 days) after it is received.
8 Section 24 of the FOI Act provides in part:
- 24 Determination of applications
(1) After considering an application for access to a document, an agency shall determine:
(a) whether access to the document is to be given (whether immediately or subject to deferral) or refused, and
(b) if access to the document is to be given-any charge payable in respect of the giving of access, and
(c) any charge payable for dealing with the application.
(2) An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.
9 Section 34 of the FOI Act provides:
- 34 Internal review
(1) A person who is aggrieved by a determination made by an agency is entitled to a review of the determination.
(2) An application for review of a determination:
(a) shall be in writing, and
(b) shall be accompanied by such application fee as the agency may determine, and
(c) shall be addressed to the principal officer of the agency, and
(d) shall specify an address in Australia to which notices under this Act should be sent, and
(e) shall be lodged at an office of the agency:
- (i) if notice of the determination was given to the applicant-within 28 days after that notice was given, or
(ii) if no notice of the determination was given to the applicant-within 49 days after the application was received by the agency, or
(iii) in any case, within such further time as the principal officer of the agency may allow.
(a) a determination of an application made under this section, or
(b) a determination that has been made by the principal officer of an agency.
(4) An application under this section shall be dealt with in accordance with this Part as if it were an application under section 17.
(5) An application under this section shall not be dealt with by the person who dealt with the original application under section 17 or by a person who is subordinate to that person.
(6) An agency that fails to determine an application made under this section within 14 days after it is received by the agency shall, for the purposes of this Act, be taken to have made a determination under section 24 refusing access to the document to which the application relates.
(7) For the purposes of this section, a person is aggrieved by a determination:
(a) if the determination relates to an application made by the person under section 17 and is to the effect that:
- (i) an agency refuses to give the applicant access to a document, or
(ii) access to a document is to be given to the applicant subject to deferral, or
(iii) access to a copy of a document from which exempt matter has been deleted is to be given to the applicant, or
(iv) access to a document is to be given to the applicant subject to a charge for dealing with the application, or for giving access to a document, that the applicant considers to be unreasonable, or
(v) a charge for dealing with the application is payable by the applicant, being a charge that the applicant considers to have been unreasonably incurred, or
- (i) an agency should have, but has not, taken such steps as are reasonably practicable to obtain the views of the person as to whether or not the document is an exempt document by virtue of any one or more of the provisions of Part 2 of Schedule 1, or
(ii) an agency should have, and has, taken such steps, but the determination is not in accordance with the views of the person, or
(8) Subsections (3) (b) and (5) do not apply to the internal review of a determination that was taken to have been made by virtue of section 24 (2).
10 Section 53(2)(a) of the FOI Act provides:
- 53 Right to make a review application
(1) A person who is aggrieved by a determination made by an agency or Minister under section 24 or 43 may apply to the Tribunal for a review of the determination.
(2) A review application may not be made:
(a) while the determination is subject to a right of review under section 34 or 47, or
(b) if the determination has been subject to a right of review under section 34 or 47 but no application for such a review of the determination was made while it was subject to that right, or
(c) while any relevant complaint is being investigated by the Ombudsman.
11 Section 9 of Administrative Decisions Tribunal Act 1997 ("ADT Act") provides:
- 9 Who is an administrator?
(1) An "administrator", in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.
Note: There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, sections 6 (2)-(5) and 38 (4) and (5) and subsection (2).
(2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only administrator in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision.
12 Section 88(1) of the ADT Act provides:
- "88 Costs
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs."
13 The Department submits that, pursuant to section 24(2) of the FOI Act, the determination was deemed to be a refusal of the application because it was made after the time limit. Pursuant to section 34 of the FOI Act, Mr Cianfrano was entitled to request an internal review and he had a period of 28 days from the date of the determination to apply for an internal review.
14 Mr Cianfrano filed the application with the Tribunal whilst he still had a right to request an internal review. Section 53(2)(a) of the FOI Act provides that an application to the Tribunal for review of a determination may not be made while the application is subject to a right of review under section 34.
15 The Department relies on a number of decisions which it says confirm that Tribunal has no jurisdiction to hear an application where the applicant has not sought an internal review: Druett v Director General, Department of Community Services [2003] NSWADT 127 (“Druett”), Hutchinson v Director Genera!, Roads and Traffic Authority [2004] NSWADT 48 (“Hutchinson”); and McGuirk v University of New ,South Wales (GD) [2007] NSWADTAP 4 (“McGuirk”)
16 In Druett, Judicial Member Robinson stated at paragraphs [9] [10]
- “9 In any event, I think the parties agree today that the applicant did not make any formal internal review application. As a consequence, the provisions of section 55(2) and (3) of the ADT Act apply, and the applicant needs to satisfy the Tribunal of the matters referred to in Section 55(2)(a), (b) and (c). …
10 The applicant made no attempt to convince the Tribunal that those provisions apply to him, and, indeed, upon my reading of them, and my understanding of the case before me, they do not apply to the applicant in this case. Therefore, I feel that there is no option available to me whatsoever other than to dismiss these proceedings for want of jurisdiction.”
17 In Hutchinson the Tribunal ultimately held that no internal review had been conducted and it did not have jurisdiction. The approach in Hutchinson has been further confirmed in Parsonage v Office of the Board of Studies [2007] NSWADT 10.
18 In McGuirk, the agency had conducted an internal review of its determination to refuse to deal with the appellant’s application unless he paid an advance deposit. However, it had changed the amount of advanced deposit the appellant was to pay and had given him a new date on which to pay, and this amounted to a new determination. The appellant did not apply for an internal review of the second determination and had applied for an external review without complying with section 53 (2) of the FOI Act. In the circumstances of that case, the Appeal Panel held that, although there had been an internal review, it had been finalised only after the application for external review. Therefore, the Tribunal had no jurisdiction to hear the application because the appellant had not complied with the statutory requirement in section 53(2) to seek an internal review of the determination.
19 The Department submitted that that there is nothing in Mr Cianfrano's submissions which supports his argument that the determination was not subject to internal review. On the authority of Hutchinson and McGuirk and in accordance with the express words and intent of section 53(2)(a) of the FOI Act, the Tribunal has no jurisdiction to hear the application, as Mr Cianfrano failed to lodge an application for internal review of the determination prior to filing his application for external review.
The Department’s submissions on costs
20 The Department submitted that an award of costs is warranted. It points to the history of the matter and the correspondence between the parties in which the Department put Mr Cianfrano on notice of its view that his application lacked any merit and that costs would be sought. It says that Mr Cianfrano knew that his refusal to withdraw the application prior to hearing would lead to the Department incurring unnecessary costs.
21 The Department referred to a number of decisions in which the issue of costs has been considered. The Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 considered what might amount to "special circumstances" justifying a costs order under section 88 of the ADT Act. Santow JA (with whom Mason P and Brownie AJA agreed) said at [55]
- "unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal's power under s. 88 to award costs."
22 His Honour went on to find at [60]:
- "[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of 'serious unfairness' is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration."
23 A costs order may be made where the application to the Tribunal "lacked any conceivable merit in fact or law": Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [4]; Wood & Anor v Bergman (No 2) [2003] NSWADT 175 at [13].
24 The Tribunal has also found special circumstances where a party unreasonably refused to withdraw from proceedings after repeatedly being put on notice that costs would be sought: Cianfrano v Chief Executive Officer, NSW State Rail Authority [2004] NSWADT 223. The applicant withdrew his application on the morning of the hearing and the respondent applied for a costs order. In considering whether "special circumstances" existed to justify the awarding of costs pursuant to section 88 of the ADT Act, the Tribunal considered the behaviour of the parties in the conduct of the proceedings. It found at paragraph [12] that the respondent "was making a genuine and concerted effort to settle the proceedings and avoid the costs involved in a hearing" and that the applicant did not co-operate. It held that the special circumstances for the awarding of costs were that the applicant was on notice that the respondent would be applying for costs, unless he withdrew; and that the applicant knew that his refusal to withdraw the application prior to hearing would lead to the respondent incurring unnecessary costs.
25 In Marrickville Commercial College Ltd v NSW Vocational Education and Training Accreditation Board [2001] NSWADT 134, the Tribunal awarded costs in favour of a respondent, in circumstances where the applicant had not filed an application for internal review and had persisted with proceedings against the respondent despite the Tribunal stating its reservations that it had jurisdiction to hear the application. The Tribunal found that special circumstances existed for the exercise of its jurisdiction pursuant to section 88(1) of the ADT Act, when the applicant persisted with the proceedings Judicial Member Rice stated at paragraph [42]
- 42 It became extraordinary or exceptional in this case when Marrickville College continued to ask the Tribunal to review a decision. Marrickville College did so in the face of the unambiguous words of the relevant Act, which described a necessary decision making process that its own evidence indicated had not happened. After the directions hearing on 11 January 2001 there was a clear basis for Marrickville College to consider withdrawing its application. Despite being given good cause to realise that its application for merits review was misconceived, it maintained the application at a further directions hearing, at which VETAB pressed its application for dismissal and I made my reservations quite clear. It maintained its application for a further period until 5 clear days before the hearing. To have done so is in my view a special circumstance which warrants the making of a costs order.
26 The Department submits that Mr Cianfrano should be ordered to pay its costs of defending these proceedings. It argues that because Mr Cianfrano is a regular participant in this jurisdiction he should have understood that his application had no merit and that he was at risk of a costs order. Further Mr Cianfrano has previously appeared before the Tribunal in matters that have involved the award of costs against him. He has also acted as agent in proceedings before the Tribunal.
27 The Department says that it has been put to considerable expense in defending the application. It submits that these factors amount to special circumstances meriting the award of costs against the applicant by the Tribunal.
Mr Cianfrano’s case on jurisdiction
28 Mr Cianfrano says he filed the application with the Tribunal in the full knowledge that the right to an internal review was not available to him. He relies on section 34(3)(b) of the FOI Act in support of this submission. He contends that the deemed refusal is to be taken to have been made by the Department’s principal officer. He referred to views expressed by the Tribunal’s President in of Cianfrano v Director General, Department of Commerce & Anor [2005] NSWADT 282 where he stated at paragraph [5]:
- 5 The agency’s determination on the substance of the request was made 16 November 2004. It was made by the head of agency (the Director-General) and is, therefore, not subject to internal review.
29 Mr Cianfrano points to section 9 of the ADT Act in particular, the meaning of "administrator". He also points to a letter that he received from the Department that is stated to have been written on behalf of the Director General. That letter stated in part:
- “The Director General has asked me to acknowledge receipt of your application under the Freedom of Information Act 1989 for documentation relating to advice provided to state Records (re SMA Records). In particular you are seeking documents relating to the Professional costs in the matter, which fell within the category of Core legal work. You are also seeking the tax ruling relied on by Mr Bradley Rowe, which enabled him to provide GST free legal advice to State Records.
Your application was received on 2 November 2006 and will be determined as soon as possible.”
30 In Raethel -v- Director-General, Department of Education and Training [2000] NSWADT 56 the Tribunal’s President stated at paragraph [10]:
- 10 If a determination is not made within the prescribed period, deeming provisions operate to treat the applicant’s application as being refused by the agency. This type of provision ensures that the applicant can then move on, if he or she wishes, to the next step in the process (internal review of deemed decision or application for review to the Tribunal) without being prevented from moving forward because no actual decision has been taken.
31 Mr Cianfrano submits that this supports his contention that it was the intention of Parliament that discretions be exercised to facilitate the disclosure of information promptly. To suggest otherwise would reward agencies that did not comply with the 21-day determination period with extra time and extra fees. Such a view fails to take Parliament’s intention into consideration.
Mr Cianfrano’s submissions on costs
32 Mr Cianfrano submits that the comments by the Court of Appeal in Cripps v G & M Dawson Pty Ltd have no relevance to this matter because they relate to a matter heard in the Retail Leases division. He refers to comments by Deputy President Chesterman in Wood & Anor v Bergman at paragraph [11]:
- 11 It is recognised that the Retail Leases Division is unique within the Tribunal, in that it alone deals with commercial disputes between parties who are engaged in trade and commerce for reward. In Gizah , at [22] and [33 – 34], the significance of this for costs orders was explained as follows. Whereas in the context of appeals from administrative decisions the requirement of ‘special circumstances’ might be interpreted so as not to discourage proceedings by a private individual on account of the risk of an adverse costs order, no such consideration should apply in the context of retail lease disputes. The ‘commerciality’ of the Retail Leases Division calls for an interpretation quite different from that which might be adopted in any other Division of the Tribunal.
33 Mr Cianfrano also sought to distinguish the other authorities on which the Department relies. He submits that his regular participation in proceedings before this Tribunal does not warrant an award of costs any more than it would warrant an award against the Department.
34 He refers to comments by the Appeal panel in Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11 where it stated at paragraph [38]
- 38 Although Mr Saggers has been unsuccessful in this appeal, it cannot be said that the appeal had no real prospect of success. Nor do any of the circumstances described by the Attorney General’s Department, either alone or in combination, amount to “special circumstances warranting an award of costs.” We agree that Mr Saggers and Mr Cianfrano are familiar with the ADT’s FOI jurisdiction. However, they are not lawyers and cannot be expected to articulate grounds of appeal in a way which a lawyer could. They have not made claims which have no tenable basis, nor have they put the Attorney General’s Department to unnecessary expense. Apart from the ground of appeal based on Government policy, which was a very minor aspect of the appeal, Mr Saggers has done his best to put forward arguable grounds of appeal. The mere expression of intention on the part of the Attorney General’s Department to apply for a costs order does not mean that such an order should be made in circumstances where Mr Saggers’ appeal was unsuccessful.
35 He asserts that this view was expressed in light of the respondent’s assertion that Mr Sagger’s case had no merit and therefore costs should fail. He contends that the Crown Solicitor’s Office in combination with the Department is attempting to frustrate freedom of information applications and are attempting to introduce the principle that applies to offers rejected and consequent costs following commonly referred to as the Calderbank principle (Calderbank v Calderbank 1976 Fam 93)
36 Mr Cianfrano submits that the same approach should be adopted in this matter and no order for costs should be made.
Findings
37 I agree with the Department’s argument that the Tribunal has no jurisdiction in this matter. In my view the relevant provisions in the FOI Act are unambiguous. The Tribunal has no jurisdiction to conduct an external review under the FOI Act if the determination has been subject to a right of internal review under sections 34 or 47 but no application for such a review was made during the available time.
38 I do not agree that a deemed determination is deemed to have been made by the principal officer of an agency. If it were otherwise the legislator could have easily indicated that an applicant could proceed directly to the Tribunal once an application is deemed to have been refused. Nor do I agree that in the circumstances of this case the deemed is to be taken to have been made by the Department’s principal officer. It follows that pursuant to section 34 of the FOI Act, Mr Cianfrano was entitled to request an internal review. Section 53(2)(a) of the FOI Act therefore has application to the matter. Accordingly, pursuant to section 53(2)(a) Tribunal has no jurisdiction to hear the application.
39 The presumption underlying section 88 of the ADT Act is that the unsuccessful party will not be required to pay the costs of the other side unless there are special circumstances warranting such an award. That presumption ought not to be disturbed without good cause. Nevertheless, there is an obvious need to ensure that parties conduct their cases in such a way that costs are not unnecessarily incurred. To that extent, any attempt to achieve a resolution between the parties without proceeding to a hearing is to be encouraged.
40 In the case of self-represented litigants care must be taken to ensure that these attempts are not misconstrued as intimidation or threats designed to discourage individuals with legitimate claims. In my view the engagement of a solicitor to appear on behalf of an agency at the planning meeting stage has the potential to appear threatening to a self-represented litigant unfamiliar with the proceedings of the Tribunal. This potential is more likely to be realised if the agency then attempts to bring the Calderbank principle into play. I note that I do not consider that to have been the case in this matter.
41 However, it is apparent that Mr Cianfrano interpreted the Department’s correspondence to be an attempt to prevent him from prosecuting his application. He pointed to other matters in which he had been advised by an agency that his application was misconceived and where he had ultimately succeeded in his application. In the light of that success he seems to have determined to proceed with his application in this matter in the hope that he may again succeed. He has done so in circumstances where a legally represented applicant may well have withdrawn. While this approach was misconceived, I do not consider that he has acted in a vexatious or malicious way.
42 In considering an application for an award of costs pursuant to section 88, the Tribunal will generally look to the conduct of the parties and consider whether they have conducted the proceedings in a way that has disadvantaged another party, been unreasonable in their conduct of the proceedings or have brought proceedings that were without merit. I do not agree that the comments by the Court of Appeal in Cripps v G & M Dawson Pty Ltd have no relevance to this matter merely because they relate to a matter heard in the Retail Leases division. The Court of Appeal was clearly considering the application of section 88.
43 There are many decisions which have considered this section however few awards have been made in the Tribunal’s General Division. (see however Miriani v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 52). Where an award of costs has been made it has often been against a party whose conduct has had a seriously unfair impact on the other. It is clear that serious unfairness is not a test that applies in all circumstances, but it is still a very useful guide.
44 In this matter, I agree that Mr Cianfrano’s application was without merit and that the Department has been put to expense that might have been avoided. However, I agree with the views expressed by the Appeal Panel in Saggers quoted above. In my view it is significant that Mr Cianfrano is a self-represented non-lawyer. I note that in the matter of Marrickville Commercial College Ltd v NSW Vocational Education and Training Accreditation Board both parties were legally represented. There is no doubt that Mr Cianfrano is familiar with the Tribunal’s FOI jurisdiction. However, he cannot be expected to conduct his application in the same manner as a legally trained representative.
45 After considering all the arguments presented by the parties I am of the view this is not a matter in which an award of costs should be made.
Order
- 1. The application is dismissed for want of jurisdiction.
2. Each party is to bear its own costs
2
13
2