Cunliffe v Darkinjung Local Aboriginal Land Council (GD)

[2010] NSWADTAP 77

Appeal Panel - Internal

CITATION:	Cunliffe v Darkinjung Local Aboriginal Land Council (GD) [2010] NSWADTAP 77
PARTIES:	APPELLANT Ian Cunliffe RESPONDENT Darkinjung Local Aboriginal Land Council
FILE NUMBER:	109021
HEARING DATES:	9 July 2010
SUBMISSIONS CLOSED:	9 July 2010
DATE OF DECISION:	29 November 2010
BEFORE:	O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Freedom of Information - Validity of Access Application - Whether documents "identified" by application - Freedom of Information Act 1989, s 17(d) - Appeal dismissed - Order for respondent’s costs
DECISION UNDER APPEAL:	Cunliffe v Darkinjung Local Aboriginal Land Council [2010] NSWADT 55
FILE NUMBER UNDER APPEAL:	083371
DATE OF DECISION UNDER APPEAL:	02/24/2010
LEGISLATION CITED:	Freedom of Information Act 1989
CASES CITED:	Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21 Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & ors [2010] NSWSC 132 Falk v ACT Health [2005] ACT AAT 22 Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75 House v R [1936] HCA 40; (1936) 55 CLR 499 Ibrahim v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 29 Patsalis v NSW Police (No 2) [2004] NSWADT 185 Re Redfern and University of Canberra (1995) 38 ALD 457 Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
REPRESENTATION:	APPELLANT In person RESPONDENT N Poynder / Patrick Woods & Company
ORDERS:	1. Appeal dismissed. 2. Appellant to pay the respondent's costs of the appeal, as agreed or assessed.

1 As at April 2006 the appellant was a partner in the firm Norton White, Melbourne. The respondent land council and several of its associated bodies retained him as their solicitor. In May 2006, the Minister for Aboriginal Affairs appointed Mr Peter Hillig as administrator of the council. The appellant's retainer was terminated. A new solicitor was appointed, Mr Patrick Woods of Patrick Woods & Company.

2 Mr Hillig sought to take control of the trustee company that administered on behalf of the council substantial funds derived from the sale of council land. The appellant, among others, contested Mr Hillig's conduct in the Supreme Court. The Supreme Court found in favour of the objectors. Its decision was reversed on appeal. Mr Hillig's conduct was found valid and effective: see Hillig v Darkinjung Pty Ltd & Ors [2008] NSWCA 75 (29 April 2008).

3 Mr Cunliffe has taken action for fees said to be due to him. Various issues arising in that litigation are the subject of a recent Supreme Court decision. The decision also recounts the broader history of the litigation surrounding the present administration of the council and the related trust fund. See Darkinjung Local Aboriginal Land Council v Darkinjung Pty Ltd & ors [2010] NSWSC 132 (1 March 2010). In addition, the appellant has taken action against Mr Woods in the Supreme Court of Victoria for defamation.

4 These disputes provide background to the present appeal.

5 On 7 November 2008 the appellant purported to make an access application under s 17 of the Freedom of Information Act 1989 (FOI Act) to the land council. The land council did not respond to the application within the statutory period. Provided the application is valid, failure to respond in time is deemed by the Act to be a refusal. On 16 December 2008 the appellant applied to the Tribunal for review of an allegedly deemed refusal.

6 In the course of planning meetings the appellant responded to criticisms by the land council of the content and scope of his original application by amending it. The revised form of the request was:

Mr Tony Hanrahan and I (the Applicants) seek the following documents (defining "document" in its widest sense) held or controlled by Darkinjung Local Aboriginal Land Council (DLALC):

1. all documents which Mr Peter Hillig and/or Mr Patrick Woods have communicated which impute that Mr Hanrahan or I may have:

a. acted dishonestly
b. been misleading or deceptive
c. overcharged
d. lied (whether or not on oath) and/or
e. acted disgracefully

2. all documents which Mr Peter Hillig and/or Mr Patrick Woods have communicated which impute that I may have abused the process of the courts or been derelict in my duty as a solicitor

Excluded from 1 and 2 are

(a) Any pleadings or other Court documents, including drafts of any such documents.
(b) Any affidavits, including any exhibits to affidavits, used in Court proceedings, including any drafts of any such documents.
(c) Any transcript or Court exhibits arising from Court proceedings.
(d) Any Court book, or other material used in Court proceedings that is in common between the partied.
(e) Any correspondence or documents sent to or received from Mr Cunliffe or Mr Hanrahan.

2. Any documents which contain information which is relevant to the statement by the Chairperson Bob Morgan in the most recent Annual Report of DLALC that state "the provision of misleading and/or deliberate untruthful advice by consultants".

7 Clauses 1 and 2 of the amended application retained key elements of the original request, for example the reference to documents which 'imputed' the appellant as engaging in disgraceful conduct.

8 As an example of the kind of document sought by the request, the appellant drew attention to a letter in his possession dated 4 December 2008 from Mr Woods as solicitor for the land council to the CEO of the Novell company. That letter was connected to the litigation mentioned. In an affidavit filed by the appellant, the appellant had referred to a period spent working with the Novell company as general counsel. Mr Woods asked the CEO for information that might verify or otherwise the appellant's account.

9 Mr Woods appeared for the land council before the Tribunal below.

10 Section 17(d) provides that '[a]n application for access to an agency's document … shall contain such information as is reasonably necessary to enable the document to be identified'.

11 Mr Woods submitted that the request (except for cl 1(c)) was not a valid request, as it failed adequately to identify the documents that it sought, and did not therefore satisfy the above requirement. The result, Mr Woods submitted, was that the agency was left to make a search that required it to trawl through a large number of documents and apply vague and sweeping criteria.

12 As to 1(c), he submitted that the council was entitled to withhold all the documents as they were privileged.

13 The Tribunal upheld both objections. Mr Cunliffe now appeals.

14 A party may appeal in relation to any question of law, as of right; and, by leave of the Appeal Panel, an appeal may be extended to the merits. The notice of appeal confined the question of law appeal to the ruling that the request was not a valid one. It did not challenge the decision in respect of cl 1(c).

15 However at hearing there were exchanges between the appellant and counsel for the land council, Mr Poynder, on the second issue. We are not disposed to consider it. We are of the view that if it was to be pressed, the appellant should have raised it in the notice of appeal.

The Validity Issue

16 The Tribunal outlined the competing positions, and concluded as follows:

23 [Mr Cunliffe] asserts that his FOI request was a valid request and that the Land Council is not entitled to reject a request for documents, which impute certain matters. He says that the FOI Act only requires an application to contain such information as is reasonably necessary to enable the requested document to be identified. The duty of the agency is to identify documents that are covered by the request. He relies [on] the Novell letter, which he asserts is held by the Land Council, as an example of the type of documents he is seeking. He contends that the Land Council is required by the FOI Act to produce any other such documents, unless they are exempt. He says that the Land Council has not contended that it is unable to identify documents which are covered by the request; nor that any lawful exemption applies.

24 With respect to Mr Woods’ assertion that it is not for the Land Council to decide what is, is not, might be or might not be, imputed by documents, the Applicant says that the FOI Act requires that the Land Council decide what documents are within the scope of a reasonable interpretation of the terms of his FOI application.

30 In the present case, on the instigation of the Land Council the Applicant has revised his request a number of times. In my view the requirement that an agency assist the process of identification has been satisfied.

33 Notwithstanding the revision of the request, part of the request remains in a form that requires the agency to exercise a subjective value judgment in identifying relevant documents. In my view, section 17 of the FOI Act does to require any agency to undertake such a task. It follows that the aspect of the request that requires that exercise of judgment is not a valid request. For that reason, that aspect of the deemed decision should be affirmed.

17 We accept that often applicants draft their requests in a broad way, and one which might be seen by agencies as a request to engage in research into its databases. It is in the nature of FOI applications that an applicant will not ordinarily have a precise knowledge of the document(s) sought. Consequently, applicants will often use loose phraseology to 'identify' the documents they want. These difficulties can normally be resolved through consultation (see s 19 requiring agencies to assist applicants where they have not supplied 'sufficient' information; and s 25(5) which is addressed to renegotiation of voluminous applications).

18 This is a case of a different kind. The parties were opposed in litigation. The requester is an experienced solicitor who was a party to the litigation.

19 In answering the question whether the requester gave sufficient information 'to enable the document to be identified' the key word is 'identified'. The primary dictionary meanings of 'identify' are '1. to recognise or establish as being a particular person or thing; attest or prove to be as purported or asserted: to identify handwriting, to identify the bearer of a cheque' (Macquarie Dictionary, 4th ed. 2005).

20 Mr Poynder gave the use of the word 'impute' as a way of identifying the documents sought as the strongest example of the administrative difficulty presented by the request. Its dictionary meaning is 'to attribute (something discreditable) to a person' (Macquarie Dictionary). Its main currency today is in the law of defamation.

21 In our view, both cl 1 and cl 2 of the request (with the exception of cl 1(c)) required the actioning officer to engage in a distillation of a large body of material and bring to it subjective judgements as to what fell inside and outside the scope of the request, for example, which words and which sentences in long documents carried an imputation of discreditable conduct.

Case-law

22 There is not a large amount of case-law dealing with objections to jurisdiction on the basis that the FOI request was not a valid one because of a failure adequately to identify the documents sought. This is not surprising given the obligation on agencies to seek to facilitate a request to which we have referred.

23 In Re Redfern and University of Canberra (1995) 38 ALD 457 (Commonwealth AAT), the agency objected to one part of the request on the same ground as in this case, the provision there, s 15(2)(b) being materially the same as s 17(d). The part to which objection was taken was the applicant's request for a 'random sample' of other students' responses to an examination paper. The Tribunal found that the requirement of s 15(2)(b) was not met as it was on its face a 'request for a selection of documents brought about as a result of some judgment exercised by the respondent' (see [21]).

24 In Re Russell Island Development Association Inc and Department of Primary Industries and Energy (1994) 33 ALD 683, the Tribunal emphasised that the 'identification' requirement did not mean that the applicant has to make 'precise descriptions' of the documents sought. That was a case where the applicant had referred to general categories. The case is also useful in emphasising that it is to be expected that the agency officer set the task of locating the documents should have regard to the general context of the request, and be a person with reasonable knowledge of the matters to which the request relates.

25 Apart from the cases mentioned, the Tribunal below also referred to observations in this Tribunal on s 19(1) in Patsalis v NSW Police (No 2) [2004] NSWADT 185 at [34]-[35] and in Falk v ACT Health [2005] ACT AAT 22 at [42]-[43].

26 The appellant submitted that Re Russell Island dealt correctly with the question of the degree of precision that a request should contain. He said that the Novell letter gave a sufficient practical illustration of the kind of contents his request sought. The council and the Tribunal should, he submitted, have seen the request read in conjunction with the Novell letter, as giving sufficient precision to the request.

27 He submitted that the Tribunal fell into legal error in not properly applying the ruling in Re Russell Island.

28 Re Russell Island and the other cases mentioned confirm that a failure to comply with the 'identification' requirement will render a request or the relevant part of the request invalid. They do not go so far as to establish specific rules as to the way the requirement is to be applied to a particular request.

Conclusion

29 Paragraph (d) uses words of an ordinary kind in an ordinary sense. They leave the officer, and the Tribunal on review, to make a judgement of a broad, discretionary kind as to whether the information given was such as was 'reasonably necessary … to identify' the documents sought. In our view, the emphasis on 'identification' informs the approach to be taken to what is ultimately a discretionary evaluation.

30 There is nothing we consider in the way the Tribunal approached its task to suggest any transgression of the boundary principles that apply to discretionary evaluations; the relevant principles being either those laid down by House v R [1936] HCA 40; (1936) 55 CLR 499 at 505-6; or the narrower principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. As to this distinction, see further, Ibrahim v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 29 at [16]-[20].

31 The appeal is dismissed.

Costs

32 The land council applied for an order for its costs of the appeal and the proceedings below.

33 It is rare for the Tribunal to make awards of costs in merits review cases. The basic rule is that '[e]ach party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings': s 88(1), ADT Act. The rule is subject to exception.

34 The exception is provided by s 88(1A), which provides relevantly:

… the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

35 In Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302, the Tribunal said of the s 88 discretion at [11]:

The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, section 88(1) provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so.

36 In B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) [2010] NSWADTAP 21, the Appeal Panel concluded at [75] that an Appeal Panel did have power under s 88(1A) to include the costs of and incidental to the first instance proceedings in a costs order. However, the Panel in B & L was of the view that in the ordinary course of events, the costs of first instance proceedings will not fall for determination by an Appeal Panel: at [76]. As the Tribunal’s Practice Note 22 states, the preferred approach is that these costs should be determined by the ‘Divisional Tribunal’, i.e., the Tribunal as it was constituted for the first instance proceedings. It will remain open for any party to challenge that determination by appealing against it.

37 Mr Woods submitted that the original application, the Tribunal review proceedings and this appeal were all vexatious. The appellant's reply was that his application was a serious one, and the issues canvassed before the Appeal Panel were serious ones.

38 The Tribunal refused the land council’s application for costs. It said:

41 In response to a similar assertion in another matter involving the Land Council ( Bradford v Darkinjung Local Aboriginal Land Council [2010] NSWADT 45) I commented:

27 Notwithstanding that the Land Council is a small agency with limited resources, the Applicant has correctly asserted that he is entitled to make FOI requests and to expect that the Land Council will determine those requests. If it fails to do so he is entitled to commence proceedings in this Tribunal. In my view the Land Council’s argument that he should not have commenced the proceedings, in circumstances where it had failed to respond to either his initial FOI request or his internal review request, is untenable.
42 In that matter the Applicant had submitted that if the Land Council had taken the time to process his requests expeditiously or even acknowledge that they would consider his requests, then there would not have been a need for him to make his applications to the Tribunal. In my view the same situation arises in this matter. These proceedings could have been avoided had the Land Council responded to the Applicant’s FOI request in the time permitted by the FOI Act.

43 Given the Land Council’s failure to respond to the Applicant’s FOI request it was almost inevitable that proceedings would be commenced in the Tribunal. Notwithstanding that the Applicant has been unsuccessful, I am not satisfied that the claim had no tenable basis in fact or law as required by section 88(1A)(c). Nor do I consider that the Applicant conducted the proceedings vexatiously. I am unable to identify any other relevant factor pursuant to section 88(1A)(e) which would make it fair to order that the Applicant pay the Land Council’s costs. In my view, the Land Council’s application for costs should be dismissed.

39 The Tribunal was entitled to make that finding and no error has been demonstrated in relation to its approach to the s 88 discretion. We are not inclined to revisit that exercise of discretion.

Costs of the Appeal

40 In our view, the appeal proceedings were unmeritorious. We accept that the original filing had a colour of justification in that the land council had not responded within the statutory period. However, it should, in our view, have been clear to an experienced solicitor, as the appellant was, that to answer his request a council officer (or a representative such as Mr Woods) would have been forced to engage in an analysis of a large amount of material to pick out text with characteristics that involved the making of difficult subjective judgements. The appellant could have chosen to make a request in a more readily-identifiable way, for example, documents belonging to a specified period in which his name is mentioned. He could then have examined the documents not refused as exempt for material that he believed maligned him.

41 In our view, it is fair in this case for there to be an order for costs against the appellant, confined to the costs of the appeal.

Order

1. Appeal dismissed.

2. Appellant to pay the respondent's costs of the appeal as agreed or assessed.