Cianfrano v Premier's Department New South Wales

[2008] NSWADTAP 21

Appeal Panel - Internal

CITATION:	Cianfrano v Premier's Department New South Wales [2008] NSWADTAP 21
PARTIES:	APPELLANT Robert Cianfrano RESPONDENT Premier's Department New South Wales
FILE NUMBER:	079058
HEARING DATES:	12 March 2008
SUBMISSIONS CLOSED:	12 March 2008
EXTEMPORE DECISION DATE:	12 March 2008
DATE OF DECISION:	12 March 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Leave to extend to the merits
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Cianfrano v Premier's Department New South Wales
FILE NUMBER UNDER APPEAL:	063341
DATE OF DECISION UNDER APPEAL:	09/19/2007
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Building Professionals Board v Hans (2008) NSWADTAP 13 Hinton v Commissioner for Fair Trading, Office of Fair Trading (2007) NSW ADTAP 17 K v K [2000] NSWSC 1052 University of New South Wales v McGuirk [2006] NSWSC 1362 World Best Holdings Limited v Sarker and anor (2004) NSWSC 935
REPRESENTATION:	APPELLANT In person RESPONDENT M Dalla-Pozza, solicitor
ORDERS:	Leave to extend the appeal to the merits of the Tribunal’s decision is refused.

REASONS FOR DECISION

1 This is a transcript of an ex tempore decision given on 12 March 2008 with minor editorial amendments.

2 This is an appeal from a decision of the Tribunal made on 19 September 2007 in the matter of Cianfrano v Director General Premier’s Department [2007] NSWADT 216. The decision relates to a request made by Mr Cianfrano under the Freedom of Information Act 1989 (FOI Act) for the following documents.

“Documents which had been authored and signed by Bob Carr MP as Premier of New South Wales. These documents will be in relation to the sale and lease of the Sydney Market Authority under the Sydney Market Authority Dissolution Act. Further more the documents are to include and go to the sale of the Crown Land known as Flemington Market and leased to Sydney Markets Limited.”
3 In response to that application, the Premier’s Department produced a document entitled “Premier’s Department Development Project Unit” which we will refer to in these reasons as a briefing note. The document is two pages and part of the document was provided to Mr Cianfrano at the Tribunal hearing. However, parts of the document were blanked out because the Premier’s Department claimed exemptions for those sections of the document. In particular dot point 3 was claimed to be exempt under the cabinet confidentiality exemption ( FOI Act , Schedule 1, clause 1) and dot points 5 to 9 were claimed to be exempt under the legal professional privilege exemption ( FOI Act , Schedule 1, clause 10).

4 The decision of the Tribunal deals firstly with the applicability of those exemptions and secondly with the question of whether, despite the fact that those parts of the documents were found to be exempt, the Tribunal should, nevertheless, exercise its discretion to disclose the content of those passages: University of New South Wales v McGuirk [2006] NSWSC 1362. The Tribunal decided that the exemptions applied and that it would not exercise its discretion to release the passages. It is that decision that Mr Cianfrano has appealed against providing, initially, six grounds of appeal. He also requested that the appeal be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), section 113.

5 At the hearing, Mr Cianfrano said that he was not appealing on questions of law but rather seeking leave to have the appeal extended to the merits of the Tribunal’s decision. The principles on which the Tribunal relies when deciding whether to extend an appeal to the merits of the Tribunal’s decision were referred to by Mr Dalla-Pozza, representing the Premier’s Department, in his written submissions to the Tribunal at paragraphs 22 to 26. We agree that those principles are applicable. In particular, Mr Dalla-Pozza referred to the decision of Hinton v Commissioner for Fair Trading, Office of Fair Trading (2007) NSW ADTAP 17 where the Appeal Panel said at [85]:

While the Appeal Panel’s discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is ‘not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction’. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand.
6 Mr Dalla-Pozza noted that the Appeal Panel in Hinton at [88] cautioned Appeal Panels to “be wary in acceding to objections to the fact finding process which would manifestly have failed as error of law points”. We also rely on the decision of Young J in K v K [2000] NSWSC 1052 at [15] where His Honour said, in relation to an appeal under section 67 of the Guardianship Act 1987 to the Supreme Court that although the section enabled the Court to hear an appeal on questions other than points of law:
It is very unlikely that the Court will grant leave to appeal when there is a problem with the fact finding exercise unless there are clear indications that the Tribunal has gone about the fact finding exercise in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.”
7 The recent decision of the Appeal Panel in Building Professionals Board v Hans (2008) NSWADTAP 13 is also relevant. In that case, the Appeal Panel set out, at [28] to [40], the principles governing the granting of leave for an appeal to extend to the merits. In particular, we highlight [33] where the Tribunal quotes passages from a decision in World Best Holdings Limited v Sarker and anor (2004) NSWSC 935 at [25] where Sully J set out what His Honour understood to be the principles for granting leave under the Supreme Court Act 1970. Sully J noted that the onus lies on the party applying for leave to appeal and the standard of proof is proof on the balance of probabilities.

8 Mr Cianfrano’s grounds of appeal were initially characterised as questions of law but he now relies on them in his application for leave. The first ground is that the Tribunal made a factual error in the first paragraph of the decision where it was said that, “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’s decision making process leading ultimately to the privatisation of the Sydney markets in 2002.” Mr Cianfrano objects to that sentence because he says that the Sydney Markets were not privatised in 2002 but in 1997. He also says that the Tribunal has not explained how or why the Sydney Markets were privatised and that, in fact, a lease was negotiated in 1997.

9 Whether or not it is factually correct to say that the Sydney Markets were privatised in 2002 is not a matter, which makes any difference to the Tribunal’s findings or conclusion. This sentence is in the first paragraph of the decision describing the background to Mr Cianfrano’s application. It does not form any part of the Tribunal’s fact finding or the reasoning on which its conclusion was based. Consequently, any error had no affect on the Tribunal’s decision and we see no basis on which leave should be granted to remake such a finding.

10 The second and third grounds of appeal relate to submissions which Mr Cianfrano says were put to the Tribunal at first instance but which the Tribunal did not take into account in coming to its conclusion. The first submission was in Mr Cianfrano’s written submissions dated 11 April 2007. In those submissions Mr Cianfrano mentioned, at paragraph 20, the Crown Lands Act 1989, section 10. The objects of that Act were set out underneath that heading and Mr Cianfrano made particular reference to paragraph (f) of those objects in his submissions to the Appeal Panel. That provision states that:

The objects of this Act are to ensure that Crown land is managed for the benefit of the people of and in particular to provide for:

(f) the collection, recording and dissemination of information relating to Crown land.

11 The submission goes on to quote sections 31, 32 and 33 of the Interpretation Act 1987 and section 25(4) and 25 of the FOI Act . The submission concludes at page 17, with the following words, “It seems to me that if it were on the cards that the disclosure of certain Cabinet documents would reveal some sort of criminal conspiracy by Ministers or public servants the correct and preferable decision would be to order the disclosure of those documents.”

12 Mr Cianfrano attended the Tribunal hearing by phone. He says he cannot recall precisely what submissions were made orally to the Tribunal as Mr Saggers was acting as his agent on that occasion. However, he says that the fact that there is reference to section 10 of the Crown Lands Act 1989 in the written submissions and there was no reference to that provision in the decision, means that the Tribunal failed to take that submission into account and that leave should be granted to extent to the merits on that basis.

13 We do not have the transcript of the Tribunal hearing so we can only be guided by the written submissions and by the Tribunal’s decision. It seems to us, on the basis of the written submissions that the essence of Mr Cianfrano’s argument was that there had been some sort of criminal conspiracy by Ministers or public servants. There is no specific reference to the objects of the Crown Lands Act 1989 being relevant in any other context. The Tribunal dealt with this submission at [32] of its reasons where it said,

“Mr Cianfrano has in this case as in many of the others that I have dealt with, made generalised allegations of corrupt and nefarious dealings on the part of the Government in its decisions in relation to the privatisation of the Sydney Market. There is nothing in any of the material that I have seen to support such concern.”
14 The Tribunal went on at [33] to say:
“Clearly the decision to sell Sydney Markets was one of public importance involving the disposal of a facility with a long history of public ownership and operation. I’ve taken this factor (favouring release) into account in deciding that the residual discretion not be exercised.”
15 In our view, the Tribunal dealt with Mr Cianfrano’s submission on this point. Although there was no specific reference to the objects of the Crown Lands Act 1989, reference was made to the substantive submission that disclosure of the document would reveal a criminal conspiracy by Ministers or public servants. We are not persuaded that the absence of a reference to section 10 of the Crown Lands Act 1989 in the decision is a matter which would justify leave being given to extend the appeal to the merits of the Tribunal’s decision.

16 A second matter in the same vein is that there is no reference in the decision to the Sydney Market Authority (Dissolution) Act 1997. Mr Cianfrano concedes that there is a reference to that Act in paragraph 16 of the Tribunal’s decision but says that the point that he intended to make about that Act was that it provides for the sale of the business undertaking of the Sydney Market Authority and not for the sale of the land. Consequently, the actions of the Government in selling the Crown land were inconsistent with the provisions of that Act.

17 At [16] the Tribunal refers to s 11 of the Sydney Market Authority (Dissolution) Act 1997 and explains the background to the document that was the subject of these proceedings. There is no reference to the Sydney Market Authority (Dissolution) Act 1997 in the written submissions and Mr Cianfrano said that he could not recollect whether that matter had been specifically raised before the Tribunal. As we said, we have no transcript of the proceedings below but the onus is on Mr Cianfrano to persuade us that there was some omission on the part of the Tribunal, which would warrant us extending the appeal to the merits of the decision. Given the content of the written submissions and the Tribunal’s reasons we are not persuaded that there is any justification for doing so.

18 Mr Cianfrano also says that the Tribunal should have released the document because the public interest in release overrides any public interest in keeping the content of the document secret. He says, in particular, that the sale has now been finalised and release would not affect the proper administration of government.

19 We acknowledge that the proper administration of government is the justification for the exemptions in the FOI Act. Mr Cianfrano did not say that he had submitted to the Tribunal that the passage of time was a relevant factor that the Tribunal should take into account. In the absence of that matter being raised at first instance, we are not persuaded that it justifies us re-opening the decision.

20 One of Mr Cianfrano’s grounds of appeal related to the Tribunal’s conclusion that legal professional privilege applied to dot points 5 to 9 of the briefing note. Mr Cianfrano’s submitted that because the Premier’s Department had engaged the Crown Solicitors Office to undertake so called “core” work, they did not have sufficient independence to be protected by the doctrine of legal professional privilege. Mr Cianfrano’s submission was that because the work was categorised as “core” work, the Premier’s Department had no choice but to instruct the Crown Solicitors Office to provide the advice. In those circumstances, the officers were akin to in-house lawyers and consequently lacked independence.

21 Whether or not the Crown Solicitors Office is sufficiently independent to attract legal professional privilege is a question of fact. At [18] of the decision the Tribunal accepted Mr Green’s evidence that dot points 5 to 9 of the briefing note contain oral or written advice provided to the Ministerial Holding Corporation derived from Ms Anderson, an employee of the Crown Solicitor’s Office. Mr Green said that he had spoken to Ms Anderson after receiving a letter from her. The Tribunal accepted Mr Green’s evidence that the Crown Solicitors Office had been instructed to act for the Premier’s Department. The decisions of Attorney General (NT) v Kearney (1985) 158 CLR 54 and obiter remarks in Waterford v Commonwealth (1987) 163 CLR 54 suggest that the relationship of Crown Solicitor to client is not one which would necessarily imply a lack of independence. Depending on the factual circumstances, government solicitors can be regarded as being sufficiently independent to justify the application of the doctrine of legal professional privilege.

22 We accept Mr Dalla-Pozza’s submission that in-house lawyers can be independent and that it is a question of fact in each case as to whether that is the case. It does not follow, as a matter of logic, that because the Premier’s Department had no choice but to instruct the Crown Solicitors Office that they were not independent in the advice that they provided. There is nothing sufficiently unfair, illogical or perverse about the Tribunal’s finding of fact that the Crown Solicitors Office was independent that would justify us extending the appeal to the merits of the Tribunal’s decision on that point.

23 The next point raised by Mr Cianfrano was that the Tribunal did not deal with an issue raised by him about “sufficiency of search”. Sufficiency of search refers to whether or not the Premier’s Department has conducted an adequate search for the documents Mr Cianfrano requested. The background to this submission was that initially the Premier’s Department had refused Mr Cianfrano’s application on the basis that it would involve an unreasonable diversion of recourses. Mr Cianfrano said that the Premier’s Department advised him initially that 13,000 documents had been identified. That was considered too big a request to be reasonably processed. After the case conference, the matter was remitted to the Premier’s Department and Mr Cianfrano narrowed his request for documents. He says that the narrowing was not substantial, but it is apparent that he confined his request to documents signed by the Premier, the Hon Bob Carr.

24 Mr Cianfrano raised the sufficiency of search issue in his written submissions to the Tribunal at paragraph 3:

“The applicant submits the respondent has failed to interpret the FOI Act according to the clearly defined words, in that they have not included any documentation that goes to the lease of the Flemington Markets, see the revised FOI applicant.”
25 Mr Cianfrano then sets out the terms of his revised application and goes on to say, “This issue will be revisited as to the sufficiency of search question as to the documents.” Mr Cianfrano told the Appeal Panel that it was his recollection that President O’Connor said, perhaps in a planning meeting, that the sufficiency of search matter would be revisited and that is the reason he referred to that fact in his written submission.

26 Mr Cianfrano says that the sufficiency of search question was not revisited by the Tribunal. We agree that there is no reference in the decision to the sufficiency of search issue. In those circumstances, we need to determine whether or not leave should be granted to extend the appeal to the merits of the Tribunal’s decision on that issue.

27 The principles relating to sufficiency of search have been set down by the Tribunal in previous decisions. In particular, in a previous decision coincidently also involved in Mr Cianfrano, O’Connor P said:

“An applicant, it seems to me, must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists. It cannot be enough that the applicant merely asserts a non-compliance of the kind to which section 24(2) is addressed. It is not enough for an applicant simply to base the assertion on a deep-seated distrust of the agency. Care must be exercised in putting the agency to the cost and effort of making further searches or putting on affidavit evidence.” Cianfrano v Director General, Department of Commerce No 2 (2006) NSWADT 195 at [69].”
28 In this case, we take the view that even if we extended the appeal to the merits of the Tribunal’s decision on this point, no evidence has been put on by Mr Cianfrano which would have raised a question about the adequacy of the Premier’s Department’s search for the documents. Mr Cianfrano narrowed his request to documents signed by the then Premier. On the basis of that narrowing a single document was produced. Given that there are no reasonable prospects of success on the sufficiency of search argument, we refuse to extend the appeal to the merits of the Tribunal’s decision on that question.

29 The final issue raised by Mr Cianfrano was that confidential sessions took place in which secret submissions were made and on which the Tribunal came to a view. While we can understand Mr Cianfrano’s concern about the Tribunal hearing evidence and submissions in his absence, section 55 of the FOI Act provides that:

In determining a review application, the Tribunal:

(a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose any exempt matter, and

(b) is to, where in the opinion of the Tribunal it is necessary to do so in order to prevent the disclosure of any exempt matter, receive evidence and hear argument in the absence of the public, the review applicant and the applicant’s representative.

30 Mr Cianfrano did not suggest that the Tribunal failed to act in accordance with that provision. It would have been necessary if the Tribunal wished to discuss the detail of the briefing note, to have had those discussions in the absence of Mr Cianfrano in order not to disclose any exempt matter to him. Consequently, we are not persuaded that the appeal should be extended to the merits on that count.

Order

Leave to extend the appeal to the merits of the Tribunal’s decision is refused.