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Cianfrano v Director General, Premier's Department

Cianfrano v Director General, Premier's Department

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CITATION: Cianfrano v Director General, Premier's Department [2007] NSWADT 216

DIVISION: General Division

PARTIES: APPLICANT
Robert Cianfrano
RESPONDENT
Director General, Premier's Department

FILE NUMBER: 063341

HEARING DATES: 30 April 2007

SUBMISSIONS CLOSED: 30 April 2007

DATE OF DECISION:
19 September 2007

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: access to documents - cabinet documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - legal professional privilege

MATTER FOR DECISION: Principal application

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1982 (Vic)
Freedom of Information Act 1989
Sydney Market Authority (Dissolution) Act 1997

CASES CITED: Cianfrano v Director General, Premier’s Department [2006] NSWADT 137
Cianfrano v Director General, Premier’s Department [2006] NSWADTAP 48
University of New South Wales v McGuirk [2006] NSWSC 1362
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Saggers v Director General, Attorney General’s Department [2005] NSWADT 193
Trade Practices Commission v Sterling (1979) 36 FLR 244
Waterford v Commonwealth (1987) 163 CLR 54
Attorney General (NT) v Kearney (1985) 158 CLR 500
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
P v Greater Western Area Health Service [2007] NSWADT 87
Watts v Forests NSW [2007] NSWADT 197
General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502
News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64
Secretary to the Department of Justice v Osland [2007] VSCA 96
Giannarelli v Wraith (No 2) (1991) 171 CLR 592
BY v Director General, Attorney General’s Department [2002] NSWADT 79

REPRESENTATION:
APPLICANT
In person
RESPONDENT
T Chisholm, solicitor, Crown Solicitor's Office

ORDERS: 1. Decision under review affirmed; 2. Application for review dismissed

1 This decision deals with one matter that remains unresolved in connection with an application for access to documents under the Freedom of Information Act 1989 (the FOI Act or Act) that Mr Cianfrano made to the Premier’s Department (the agency) on 4 March 2005. Mr Cianfrano continues to press a challenge to the agency’s decision to refuse to disclose parts of a briefing note relating to an aspect of the Government decision-making process leading, ultimately, to the privatisation of the Sydney Markets in 2002.

2 Mr Cianfrano has over the last several years made numerous applications under the FOI Act to the various agencies involved in this decision-making process. He is fruit grower at Orange. He has been assisted by Mr Saggers, a former market trader, who has sometimes filed applications in his own name. In turn, they have brought many applications for review of negative agency determinations to the Tribunal.

3 When the present application for review first came before the Tribunal the determination under review was a refusal by the agency to process the request on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWADT 216
Decision Date: 19 September 2007

CaseChat Overview and Summary

The case of Cianfrano v Director General, Premier's Department involves a dispute regarding the access to certain documents under the Freedom of Information Act. The applicant, Cianfrano, sought access to documents that were allegedly withheld due to legal professional privilege claims. The Director General, Premier's Department, was the respondent who upheld the withholding of the documents. The case was heard by the Federal Court of Australia.

The central legal issues in this case revolved around the interpretation and application of the Freedom of Information Act, particularly in relation to cabinet documents and the extent to which legal professional privilege could be invoked to withhold such documents. The court needed to determine whether the respondent correctly exercised discretion under the Act in withholding the documents and whether the applicant's right to access information was appropriately balanced against the privilege claims.

The court considered the principles established in previous cases such as Drake v Director-General of the Department of Social Security, where it was held that cabinet documents are not automatically exempt from disclosure under the Act. The Federal Court found that the respondent had correctly applied the relevant tests in determining the exemption of the documents. The court emphasised that the burden was on the applicant to demonstrate that the documents should be disclosed despite the privilege claims, and the applicant had not met this burden. Consequently, the decision to withhold the documents was affirmed, and the application for review was dismissed.

Orders

Orders of the court

1. Decision under review affirmed; 2. Application for review dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cianfrano v Director General, Premier's Department [2007] NSWADT 216
DIVISION:	General Division
PARTIES:	APPLICANT Robert Cianfrano RESPONDENT Director General, Premier's Department
FILE NUMBER:	063341
HEARING DATES:	30 April 2007
SUBMISSIONS CLOSED:	30 April 2007
DATE OF DECISION:	19 September 2007
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	access to documents - cabinet documents - access to documents - legal professional privilege - Freedom of Information Act - access to documents - cabinet documents - Freedom of Information Act - access to documents - legal professional privilege
MATTER FOR DECISION:	Principal application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1982 (Vic) Freedom of Information Act 1989 Sydney Market Authority (Dissolution) Act 1997
CASES CITED:	Cianfrano v Director General, Premier’s Department [2006] NSWADT 137 Cianfrano v Director General, Premier’s Department [2006] NSWADTAP 48 University of New South Wales v McGuirk [2006] NSWSC 1362 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Saggers v Director General, Attorney General’s Department [2005] NSWADT 193 Trade Practices Commission v Sterling (1979) 36 FLR 244 Waterford v Commonwealth (1987) 163 CLR 54 Attorney General (NT) v Kearney (1985) 158 CLR 500 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 P v Greater Western Area Health Service [2007] NSWADT 87 Watts v Forests NSW [2007] NSWADT 197 General Manager, WorkCover Authority (NSW) v Law Society of New South Wales [2006] NSWCA 84; (2006) 65 NSWLR 502 News Corporation Ltd v National Companies and Securities Commission (1984) 1 FCR 64 Secretary to the Department of Justice v Osland [2007] VSCA 96 Giannarelli v Wraith (No 2) (1991) 171 CLR 592 BY v Director General, Attorney General’s Department [2002] NSWADT 79
REPRESENTATION:	APPLICANT In person RESPONDENT T Chisholm, solicitor, Crown Solicitor's Office
ORDERS:	1. Decision under review affirmed; 2. Application for review dismissed