Cianfrano v Director General, Premier's Department (GD)

[2006] NSWADTAP 48

Appeal Panel - Internal

CITATION:	Cianfrano v Director General, Premier's Department (GD) [2006] NSWADTAP 48
PARTIES:	APPELLANT Robert Cianfrano RESPONDENT Director General, Premier's Department
FILE NUMBER:	069030
HEARING DATES:	29/08/2006
SUBMISSIONS CLOSED:	08/29/2006
DATE OF DECISION:	09/18/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	application of government policy - bias - evidence - admissability of expert evidence - fail to exercise discretinary power
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053154
DATE OF DECISION UNDER APPEAL:	05/09/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Freedom of Information Act 1989
CASES CITED:	Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291 Ebner v Official Trustee (2000) 205 CLR 337 Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd [2006] NSWCA 185
REPRESENTATION:	APPELLANT C Saggers, agent RESPONDENT A Johnson, solicitor
ORDERS:	1. The Tribunal’s decision is set aside; 2. The matter is remitted to the Tribunal to be heard and decided again either with or without the hearing of further evidence

Introduction

1 Mr Cianfrano applied to the Premier’s Department (the agency) for access to documents under the Freedom of Information Act 1989 (FOI Act). The agency refused on the grounds that the work involved in dealing with the application would “substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions”: s 25(1)(a1) of the FOI Act. We refer to this provision as the “resources exception”. An internal review was not completed within the required time frame and the agency was deemed to have refused Mr Cianfrano’s application. Mr Cianfrano applied to the Tribunal for a review of that decision. The Tribunal affirmed the agency’s determination that access should be refused on the basis of the resources exception. Mr Cianfrano has appealed against that decision. He is entitled to appeal on any question of law: Administrative Decisions Tribunal Act 1997 (ADT Act) s 113(2)(a). With the Appeal Panel’s leave the appeal may extend to a review of the merits of the Tribunal’s decision: ADT Act, s 113(2)(b).

Background to the appeal

2 On 24 February 2005, Mr Cianfrano wrote to the agency seeking access to documents under the FOI Act. An extract from that letter says:

I am requesting for all documents and or records etc, of the Premiers Department in relation to NSW Premier Bob Carr and Sydney Markets or Flemington Markets.

The documents and or records etc, are to include all internal working documents and all factual material in relation to, NSW Premier Bob Carr and the preparation and finalization of the lease for the assets and business interests of the Sydney Market Authority and to the sale of the assets of Sydney Markets. ...

My application relates to factual material and all types of documents and or records etc, that NSW Premiers Department has in its possession and in relation to, NSW Premier Bob Carr and the Sydney Market Authority and Sydney Markets Limited and any other agency and or agent etc. to do with Sydney Markets.

3 The agency wrote to Mr Cianfrano and advised that it could refuse access to the documents on the basis of the resources exception. In accordance with the provisions of s 25(5) of the FOI Act, Mr Cianfrano was invited to refine his application. That provision prevents an agency from refusing access to documents on the basis of the resources exception unless the agency has first endeavoured “to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency’s resources away from their use by the agency in the exercise of its functions.”

4 Mr Cianfrano revised his request by substituting the words “Bob Carr MP” for the words “NSW Premier Bob Carr” wherever they appeared. There were other inconsequential changes. The Tribunal commented in its decision at [64](e) that “[T]he second request was not, I think, in any significant way different from the first request.” Mr Cianfrano indicated during the course of the appeal hearing that his understanding was that he had narrowed his request significantly.

5 The agency refused the application saying that:

A search for the documents in the Premier's Department covered by your application would require a diversion of scarce staff resources. Although the scope of your request was revised, it remains too broad to enable the Department to locate and retrieve any documents relevant to your FOl application.

6 The Tribunal criticised the Department for not providing reasons for this decision.

7 Mr Cianfrano applied for an internal review of the agency’s decision. The agency acknowledged that letter but the internal review determination was not made within 14 days, so there was a deemed refusal of Mr Cianfrano’s application: FOI Act, s 34(6). Mr Cianfrano then lodged an application for external review of the agency’s determination with the Tribunal.

Hearing before the Tribunal

8 On the first day of hearing, Mr Cianfrano alleged that one of the agency’s witnesses, John Dermody, had a conflict of interest and that his evidence should not be relied on. While not accepting that there was a conflict of interest, the agency requested and obtained an adjournment to put on independent evidence from “a separate person within that department”. O’Connor P asked Mr Cianfrano if he was happy with the matter being adjourned. Mr Cianfrano replied that he was happy with that course. The matter was adjourned and three months later Mr Leslie Quinnell gave evidence to the Tribunal. He had been employed by the agency before his retirement and had experience dealing with FOI applications.

9 Mr Quinnell explained that he had identified a total of 24 files comprising 94 'parts'. He estimated the number of pages in each part, based on a sample of the various files. Of these, 57 parts had already been identified and put to one side by Mr Dermody. Mr Quinnell concluded that they averaged 200 pages per file and there would therefore be 11,400 pages in the 57 parts. He said that if it transpired, on a sample inspection, that any of the further 37 file parts were relevant to the request, increased time would be required.

10 Mr Quinnell considered that on average it would take an officer 30 seconds to read each of the 11,400 pages, a total of 95 hours. It would take a further 95 hours to compile a schedule of documents. Mr Quinnell estimated that there were up to 30 external bodies whose information was contained in the documents and he allowed a further 30 hours to consult with these bodies. He estimated that it would take an additional 9.5 hours to copy and return each affected document to the file. In all, Mr Quinnell estimated that it would take 229.5 hours to process Mr Cianfrano’s request.

Tribunal’s decision

11 The Tribunal held that the estimates of time spent could properly include the time spent searching for and retrieving files as well as the subsequent steps, such as the perusal of documents, preparation of schedule of documents, consultation, notation of the documents and the clerical steps required to prepare a schedule of documents (at [31] to [34]). The Tribunal found that in assessing an agency's capacity to deal with a request, some regard should be had to the size of an agency and not merely the line area affected by the request. Not all of the resources of an agency had to be taken into account when assessing whether a demand would have an undue impact. Rather what was to be considered was 'the resources reasonably required to deal with an FOI application with attendance to other priorities': at [55]. O'Connor P concluded at [60] that:

Given its role in the affairs of the State, this agency - ­the Premier's Department - can be expected to have substantial bodies of documents that involve important areas of government activity. An agency of this kind should not be given, as I see it, the degree of liberality in relying on s 25(1)(a1) that might be appropriate to a very small statutory body with a small staff complement, and consequently a very limited capacity to deal with FOI requests of scale ...

12 Having reviewed the relevant case law, O'Connor P discussed the factors which were likely to be relevant when determining whether the resources exception applied. His Honour then went on to analyse those factors in the context of Mr Cianfrano’s request as follows (at [64]):

(a) the terms of the request, especially whether it is of a global kind or generally expressed request

It is a wide request of global kind, not containing any time boundaries nor category boundaries, and essentially asking for access to all internal documents bearing on a particularised subject-matter. It is a broad request, but I would not go so far as to describe it as 'perverse' or 'fishing'.

(b) the demonstrable importance of the document or documents to the applicant may be a factor in determining what in the particular case is a reasonable time and a reasonable effort ...

The subject matter is one of public importance, involving, in essence, the circumstances leading to the withdrawal of government from a field of activity for which it had ultimate responsibility for generations, because of its ownership of the land and the conduct of the markets through a statutory authority.

(c) more generally whether the request is a reasonably manageable one giving due, but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with FOl applications

There is a real issue raised here as to the capacity of the agency to deal with a request of the present scale. As my earlier comments suggest, I have some doubt as to whether the agency has adequate arrangements in place to meet the request relating to a matter of public importance, given its central place in the making of government decisions and the taking of government action of importance, and the likelihood that from time to time it will receive complex, multi-document requests.

(d) the agency estimate as the number of documents affected by the request, and by extension the number of pages and the amount of officer time, and the salary cost

The evidence is accepted that on a best estimate at this stage the number of documents affected is 11,400 and the officer time 229 hours. In this instance, the Tribunal accepts Mr Quinnell's higher estimate. There is also the Tribunal thinks a real possibility that the estimate (even though it is double Mr Dermody's estimate) may be exceeded because of what may be found in the additional 57 files.

(e) the reasonableness or otherwise of the agency's initial assessment and whether the applicant has taken a co-operative approach in redrawing the boundaries of the application

The applicant did not, in my view, take a co-operative approach. The second request was not, I think, in any significant way different from the first request.

(f) the time lines binding on the agency

It would not have been possible, as I see it, for the agency to comply with this request in 21 days or any period approximating to 21 days.

(g) whether beyond 40 hours' processing time, and to what degree

The time allocation, 229 hours for the first stage of the ultimate task, is well in excess of 40 hours."

(h) regard needs to be had to the degree of certainty that can be attached to the estimate that is made as to documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made

(h) degree of certainty that can be attached to estimate

I think there is a real possibility in this case that the estimate and number of documents would be exceeded (57 file parts remained to be assessed).

(i) repeat applications

This point was not raised in this case.

13 The Tribunal concluded that Mr Cianfrano’s request came within the resources exception and the agency’s decision not to deal with his application was the correct decision.

Grounds of Appeal

14 Although Mr Cianfrano listed 13 grounds of appeal in his written submissions, he reduced the grounds to six at the hearing. Those grounds can be summarised as follows:

1. Before refusing to deal with an application on the basis of the resources exception, the agency must comply with Premier’s Memorandum No. 90-31. That Memorandum requires an agency to “negotiate” with the applicant for a longer period of time within which it may comply with the request. The Tribunal did not give effect to that policy as required by s 64 of the ADT Act .

2. The basis of the adjournment was to give the agency an opportunity to obtain further evidence from an officer of the agency. When the matter resumed, the agency relied on the evidence of Mr Quinnell who was not an officer of the agency.

3. Mr Quinnell was an expert witness but did not comply with the Tribunal’s Practice Note 14 in relation to expert witnesses.

4. The Tribunal failed to make a recommendation to the Minister pursuant to s 58 of the FOI Act when it should have made such a recommendation in relation to the failure of Mr Alex Smith, Deputy Director General, to give reasons for his determination of 12 April 2005.

5. The Tribunal should have required the agency to produce the files that came within the scope of Mr Cianfrano’s request to satisfy itself that the estimates as to how long the agency would take to deal with the application were accurate.

6. The Tribunal was biased because it agreed with a comment of counsel for the agency as to the scope of Mr Cianfrano’s application.

15 We have found that the first ground of appeal discloses an error of law on the part of the Tribunal. None of the other grounds amounts to an error of law.

Ground 1 – application of Government policy

16 Mr Cianfrano contends that the Tribunal did not give effect to Government policy as set out in Premier’s Memorandum No. 91-30. Under s 64 of the ADT Act, with two exceptions, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made. Section 64 of the ADT Act states that:

64 Application of Government policy

(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

"Government policy" means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

17 There was no dispute that the Memorandum No. 91-30 was “Government policy” within the meaning of s 64 and that it was in force at the time. However, neither the parties nor the Tribunal was aware of the policy at the time the proceedings were heard. We set out the text of the Memorandum below. The critical passages are underlined. Section 22(1) of the FOI Act is now s 25(1)(a1) and s 22(2) is now s 25(5).

MEMORANDUM No. 91-30

FREEDOM OF INFORMATION REQUESTS:

SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES

(Memorandum to all Ministers)

You will be aware that the Government is reviewing administrative procedures and legislative provisions in relation to the operation of the Freedom of Information Act to enhance open and accountable government in New South Wales.

One of the matters raised for consideration in this review is the existence of, and the reliance upon, the "substantial and unreasonable diversion of resources" ground in refusing to deal with an application (section 22 FOI Act).

Section 22 (1) of the Act enables an agency to refuse to deal with an application if it appears to the agency that the nature of the application is such that the work involved in dealing with it would, if carried out, substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions. However, subsection (2) of section 22 provides that the agency must not refuse the application unless it has first endeavoured to assist the applicant to amend the application so that the work involved in dealing with it would, if carried out, no longer substantially and unreasonably divert the agency's resources away from their use by the agency in the exercise of its functions.

The existence of the "substantial and unreasonable" provision in the Act ensures that agencies are not prevented from carrying out their normal functions by reason of the demands placed upon them by extensive and wide-ranging FOI requests. The provision is a necessary protection of the ability of agencies to discharge their usual functions.

However, the requirements of subsection 22 (2) provide a clear indication that agencies should assist applicants to amend their applications in order to avoid the "substantial and unreasonable'' ground for refusal. The intention, therefore, is that applications should be dealt with as far as possible and that agencies should refrain from invoking the ground for refusal if it can be avoided.

I consider that it would be in keeping with the spirit of the legislation to impose a further requirement upon agencies before they may refuse to deal with an application under section 22. That is, where an agency has endeavoured to assist an applicant to amend an application, but the work involved in dealing with the amended application would still involve the agency in a substantial and unreasonable diversion of resources, the agency should not automatically refuse to deal with the application under section 22. The agency should then negotiate with the applicant for a longer period of time within which it may comply with the request. This would enable the agency to spread the work involved in processing and assessing the application and the relevant documents over time, allowing the agency to conduct its normal operations without unreasonable interference from the demands of the FOI request. The agency and the applicant may agree to the application being dealt with in several stages, thereby "staggering" the time for compliance with parts of the request.

I consider that the implementation of these procedures will improve the operation of Freedom of Information in this State. The system of negotiation for additional time to comply with requests has been used in the Commonwealth FOI system with success. It is consistent with the general spirit and intent of the legislation and will further facilitate open and accountable government.

I would appreciate it if you would inform all agencies under the Freedom of Information Act within your administration of the terms of this Memorandum and request that they implement these administrative procedures in the future.

Yours sincerely,

N. F. Greiner, M.P.

Issued: Legal Branch

Date: 8 November 91

18 The Memorandum says, in substance, that where an agency has tried to assist an applicant to amend a large request but the request would still come within the resources exception, the agency should try to negotiate a longer time frame within which to comply with the request, including the possibility of dealing with the request in stages, before refusing to process it.

19 Section 64 is expressed in mandatory terms; the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made: Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd [2006] NSWCA 185 (13 July 2006) at [27]. The policy requires an agency to “negotiate” with the applicant for a longer period of time within which it may comply with the request. There was no evidence that any such negotiation took place in this case.

20 There are two qualifications to the application of Government policy by the Tribunal. The first is where the policy is contrary to law. The Memorandum does not prevent an agency from relying on the resources exception after it has asked the applicant to narrow the request in accordance with s 25(5) and negotiated about the length of time in which to deal with the application. However, giving effect to the policy will mean that the agency cannot comply with s 18(3) of the FOI Act which requires agencies to deal with an application within 21 days after it is received. Special circumstances justifying an extension for a further 14 days are listed in s 59B. Complying with the policy expressed in the Memorandum is not listed as a special circumstance. Consequently, failure to deal with an application within 21 days means that the agency is taken to have determined the application by refusing access to the documents: FOI Act, s 24(2). If no notice of the determination is given, then an applicant has 49 days (or such further time as the agency may allow) in which to lodge an internal review: FOI Act, s 47(2)(d). Where an applicant agrees to an application being dealt with over a longer period than 21 days, presumably the agency would allow further time if the applicant subsequently decided to lodge an internal review. Because there is provision for a late application for internal review, it cannot be said that the policy is contrary to the legislation.

21 The second qualification to the application of s 64 is where the policy produces an unjust decision in the circumstances of the case. Giving effect to the policy could not produce an unjust decision because all that the policy requires is that the agency negotiate with the applicant for a longer period of time within which to comply with the request. Ultimately, the decision may still be that the resources exception applies.

22 Consequently, although neither the parties nor the Tribunal was aware of the policy, s 64 requires the Tribunal to give effect to it. Ms Johnson, representing the agency, submitted that the Tribunal had implicitly given effect to the policy in the Memorandum when it said at [40], that:

I understood the applicant at this point to be alluding to the possibility that he might not press for some of the documents, as he may have some of the items listed via previous applications to other agencies. The applicant saw this approach as manifesting co-operation and consistent with the support given to staged dealing with time-consuming requests, mentioned by the Commonwealth Administrative Appeals Tribunal in Re Eastman and Department of Territories and Local Government (1983) 5 ALD 192 and Re Carver and Department of Prime Minister and Cabinet (1987) 6 AAR 317.

23 The Tribunal identified “the time lines binding on the agency” as a relevant factor when assessing whether the agency had established that the resources exception applies. The Tribunal noted that the FOI Act provides timeframes which are “quite tight”, that is 21 days to respond to a request and 14 days to respond to an internal review request. When considering this factor, at [64], the Tribunal contrasted provisions in other Australian jurisdictions which gave a longer period of time and said that:

It would not have been possible, as I see it, for the agency to comply with this request in 21 days or any period approximating to 21 days.

24 The Tribunal did not mention the possibility of negotiating with an applicant for a longer period of time. We are not persuaded that the Tribunal implicitly gave effect to the policy in the Memorandum.

25 The final consideration is whether there was any utility in giving effect to the policy in the circumstances of this case. It is arguable that even if the agency applied the policy, its ultimate determination would have been the same. While it is possible that the agency’s decision would have been the same even if the negotiations envisaged in the policy had taken place, Mr Cianfrano’s request is not as voluminous as many other requests where agencies have relied on the resources exception. If further time is allowed to deal with the application that may avoid the substantial or unreasonable diversion of the agency’s resources away from their use by the agency in the exercise of its functions. We are not persuaded that giving effect to the policy would necessarily have been a futile exercise.

26 We are satisfied that the Tribunal was in breach of s 64 of the ADT Act by failing to give effect to Government policy in force at the time the reviewable decision was made. The way in which the Tribunal should have given effect to the policy was to remit the decision to the agency under s 65 of the ADT Act with a recommendation that it apply the policy in the Memorandum.

Ground 2 – breach of understanding

27 On the first day of hearing before the Tribunal, Mr Cianfrano alleged that one of the agency’s witnesses, John Dermody, had a conflict of interest and his evidence should not be relied on. While denying any conflict, counsel for the agency requested an adjournment “so that my client can ask a totally separate person within the office . . . to undergo the same task in terms of identifying the files and folders that fall within the scope of the request and to redo that process.” According to Mr Cianfrano, the Tribunal granted an adjournment on the basis of an “arrangement” that the agency would obtain further evidence from another officer of the agency. When the matter came back before the Tribunal three months later, counsel for the agency summarised what had taken place on the first hearing day. She said:

Then you’ll recall that during those proceedings Mr Cianfrano raised an assertion on his part that Mr Dermody, who is an officer within the Premier’s Department, the assertion was that he had a conflict of interest and therefore that information he may have provided in relation to the agency’s determination about whether or not the diversion of resources would be substantial or unreasonable was affected by that. The Tribunal will recall that at that time I took instructions from Mr Hanna on behalf of the Department. My instructions were that there was certainly no conflict and that Mr Dermody was not a stakeholder in the process of selling the markets but they were concerned that there not be even a whiff or colour of any type of conflict and so it was for that reason that - and the Department’s position is that there is no conflict, but in order to assure the Tribunal that an independent person had undertaken an assessment of the tasks that would be involved in responding to this application, we adjourned to seek to put on further evidence to that matter.

So the result of that process is an affidavit of Mr Les Quinnell was filed and served on 12 October 2005 and Mr Cianfrano has asked that Mr Quinnell be available for cross-examination and he’s outside the Tribunal today available for cross-examination. So in terms of the respondent’s case today I’ll be relying on the affidavit of Mr Hanna and I’ll also be relying on the affidavit of Mr Quinnell.

28 Mr Cianfrano made several points about the fact that evidence was given by a person who was not employed by the agency. None of these points amount to an error of law, but we deal with each of them briefly below.

29 First, Mr Cianfrano said that counsel for the agency failed to mention when summarising what had taken place, that the original arrangement was that someone from within the agency would give evidence. If Mr Cianfrano is suggesting that counsel deliberately misled the Tribunal, that is not a matter that would amount to an error of law on the Tribunal’s part. In our view, although it is not strictly our role to comment on such an allegation, there is no evidence which would support a finding that counsel deliberately misled the Tribunal.

30 Second, Mr Cianfrano said that he did not realise during the second hearing day, that the agency had originally said that it would call an officer from within the agency to give evidence. He said that the Tribunal should have brought that matter to his attention. The Tribunal is obliged to “take such measures as are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions”: ADT Act, s 73(4). Nothing in the ADT Act requires the Tribunal to bring a matter to a party’s attention when the matter has already been mentioned in open court.

31 Third, Mr Cianfrano said that the agency had reneged on the “arrangement” that had been made to obtain evidence from an officer from within the agency. Even if there was such an arrangement, the failure of the agency to rely on evidence from an officer of the agency does not amount to an error of law on the part of the Tribunal.

32 Fourth, Mr Cianfrano said that he was disadvantaged by the fact that a person external to the agency gave evidence. He said Mr Quinnell did not have sufficient knowledge of the agency’s records to enable him to be cross-examined on those matters. The onus is on the agency to prove that the resources exception applies: FOI Act, s 61. The evidence that it relies on in an effort to discharge that onus is a matter for the agency.

33 Fifth, Mr Cianfrano said that because Mr Quinnell was not a public servant he was not bound by the Premier’s Department’s Code of Conduct. He did not say how that fact affected the evidence he gave, nor how it amounted to an error on the Tribunal’s part. Ms Johnson, for the agency, correctly pointed out that Mr Quinnell gave sworn evidence and whether or not he was bound by the Code of Conduct was irrelevant.

34 Finally, Mr Cianfrano said that because it is the agency which must make the ultimate determination in relation to an application under the FOI Act, everyone who assists in making that determination should also be an officer of that agency. While an officer of the agency must make the ultimate determination, there is nothing in the FOI Act which prevents an agency from relying on evidence of persons who are not officers of the agency.

Ground 3 – expert witness’ evidence should not have been admitted

35 Mr Cianfrano says that Mr Quinnell was an expert witness but he did not comply with the obligations of an expert witness and the Tribunal should not have treated him as an expert or admitted his evidence. Mr Quinnell gave evidence of how long it would take to process Mr Cianfrano’s application, how long it would take to consult with relevant third parties and how long it would take to edit and photocopy the documents. This evidence was an expression of his opinion based on the number of files, the number of folios in each file and his estimate of how long it would take to deal with the application. The general rule is that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: Evidence Act 1995, s 76(1). An exception to this rule is that opinion evidence may be admitted if “a person has specialised knowledge based on the person’s training, study or experience” and the opinion is “wholly or substantially based on that knowledge”: Evidence Act 1995, s 78.

36 Because the Tribunal is not bound by the rules of evidence, it was open for it to admit evidence of an opinion whether or not that opinion was based on any specialised knowledge: ADT Act, s 73(2). Nevertheless, the Tribunal should be guided by the principles in the Evidence Act and rely only on evidence that is reliable. Mr Quinnell’s opinion was based, at least to some extent, on his knowledge of the records system of the Premier’s Department and on his experience working in that Department. Consequently he specialised knowledge based on his training and experience and was qualified to express the opinions that he did. The Tribunal has not made an error of law in admitting evidence of Mr Quinnell’s opinions.

37 The agency submitted that Mr Quinnell was not an expert witness to whom Practice Note 14 applies. That Practice Note outlines the procedures that the Tribunal says it will follow when dealing with expert evidence. For example, an expert’s report must specify the person’s qualifications as an expert and the reasons for each opinion expressed. Even if Mr Quinnell were an expert witness, we do not agree with Mr Cianfrano’s submission that he has failed to meet the requirements of Practice Note 14. For example, Mr Quinnell’s statement of evidence sets out his experience and gives reasons for the opinions expressed. Even if all the requirements of the Practice Note have not been fulfilled, the Practice Note is merely a guide as to the Tribunal’s expectations when expert witnesses are involved. Non-compliance with that Practice Note does not necessarily amount to an error of law.

Ground 4 – failure to make a recommendation under s 58

38 Mr Cianfrano submitted that the Tribunal failed to make a recommendation to the Minister under s 58 of the FOI Act. That provision states that:

If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency.

39 The function which Mr Cianfrano says that Mr Alex Smith, Deputy Director General, failed to exercise in good faith, was his function to give reasons for his determination of 12 April 2005. Although the Tribunal criticised the agency for not providing reasons, there was no evidence that Mr Smith’s failure to do so was in bad faith. He may have been unaware of his obligations set out in the FOI Procedures Manual, third edition, 1994 at p 79. Section 58 gives the Tribunal a discretion after it has formed an opinion as to certain matters. Because there is no evidence of bad faith on the part of Mr Smith, there is no basis for the formation of the opinion that is a pre-requisite to the exercise of the discretion. Consequently, the Tribunal did not make an error of law by failing to bring the matter to the attention of the Premier.

40 Another function which Mr Cianfrano said that the agency had not exercised in good faith was the application of Government policy in Memorandum No. 91-30. There is no evidence that officers of the agency were aware of this policy and chose not to apply it. In those circumstances, there is no basis for the formation of the opinion that is a pre-requisite to the exercise of the discretion. Consequently, the Tribunal did not make an error of law by failing to bring the matter to the attention of the Premier.

Ground 5 – Tribunal should have called for the files

41 According to Mr Cianfrano, the Tribunal’s role is to hold an inquiry, not to allow the proceedings to be conducted in an adversarial manner. In those circumstances, the Tribunal should have required the agency to produce the files that came within the scope of Mr Cianfrano’s request to satisfy itself that the estimates as to how long the agency would take to deal with the application were accurate. As we have said, the onus is on the agency to prove that the resources exception applies: FOI Act, s 61. The evidence that it relies on in endeavouring to discharge that burden is a matter for the agency. There is no obligation on the Tribunal to call for the files.

Ground 6 – apprehended bias

42 On the first day of hearing before the Tribunal counsel for the agency said to the Tribunal that, “Mr Cianfrano’s application was taken to mean all documents relating to the Sydney Markets that were in the Premier’s Department’s possession.” O’Connor P responded with the comment that, “It certainly reads like that.” Mr Cianfrano says that this comment demonstrates apprehended bias on the part of O’Connor P and, presumably, that the orders he made should be set aside on that basis. The Tribunal ultimately found at [64] that, “The second request was not, I think, in any significant way different from the first request.”

43 The general test applicable to the question of whether a decision maker should be disqualified for apprehended bias is well known. It was discussed by the Court of Appeal in Commissioner of Corrective Services v Government and Related Employees Appeal Tribunal & Ors [2004] NSWCA 291. Giles JA at [22] (with whom Sheller and Ipp JJA agreed) and followed by the Appeal Panel in Khera v Law Society of New South Wales (LSD) [2005] NSWADTAP 29 at [13]:

In determining whether a decision-maker is disqualified by reason of an appearance of bias the question is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Ebner v Official Trustee (2000) 205 CLR 337 at [6]; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 at [27].

44 O’Connor P made a comment agreeing that Mr Cianfrano’s application reads as if he is requesting all documents relating to the Sydney Markets that were in the Premier’s Department’s possession. The making of that comment would not lead a fair-minded lay observer to apprehend that O'Connor P did not bring an impartial and unprejudiced mind to the resolution of the question before him. He was merely expressing a preliminary view about what the words meant.

Conclusion

45 Mr Cianfrano has been successful in relation to one of the six grounds of appeal. That ground relates to the fact that the Tribunal did not give effect to Government policy. It does not matter that neither the Tribunal nor the parties was aware of the policy; s 64 obliges the Tribunal to give effect to it. The policy says that where an agency has tried to assist an applicant to amend a large request but the request would still come within the resources exception, the agency should try to negotiate a longer time frame within which to comply with the request, including the possibility of dealing with the request in stages, before refusing to process it. The way in which the Tribunal should have given effect to the policy was to remit the decision to the agency under s 65 of the ADT Act with a recommendation that it apply the policy set out in the Memorandum.

46 We note that Mr Cianfrano made comments during the hearing of this appeal which suggest that his understanding of the scope of his application is significantly different from the agency’s understanding. The remittal of the decision will provide a further opportunity for the agency to either negotiate with Mr Cianfrano in relation to the scope of his application or, at least, to come to some agreement with him as to the description of the documents he seeks.

Extension to the merits

47 Mr Cianfrano requested that the appeal be extended to the merits of the Tribunal’s decision. That would involve the Appeal Panel remitting the matter to the agency to apply the policy. Once the policy has been applied, the agency may either deal with the application over a longer period or maintain its reliance on the resources exception. If it deals with the application and refuses to grant Mr Cianfrano access to some or all of the documents, he may wish to proceed with the application for review of the decision as varied: ADT Act, s 65(3). It is more appropriate for the Tribunal at first instance, rather than the Appeal Panel, to review that decision. Consequently, we decline to extend the appeal to the merits of the Tribunal’s decision.

Orders

48 We make the following orders:

1. The Tribunal’s decision is set aside.

2. The matter is remitted to the Tribunal to be heard and decided again either with or without the hearing of further evidence.