Curtin v Vice Chancellor, University of New South Wales

[2005] NSWADT 186

CITATION:	Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186
DIVISION:	General Division
PARTIES:	APPLICANT Peter Curtin RESPONDENT Vice-Chancellor, University of New South Wales
FILE NUMBER:	053137
HEARING DATES:	15/07/2005
SUBMISSIONS CLOSED:	07/15/2005
DATE OF DECISION:	07/15/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Application to be represented by an agent
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT M Toomey, Assistant University Solicitor, UNSW and D Osborn, FOI Officer
ORDERS:	Application refused

1 DECISION – on application by applicant to be represented by an agent – made pursuant to s 71 of the Administrative Decisions Tribunal Act 1997. Section 71, as relevant, provides:

‘ 71 Representation of parties

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an agent, or

(c) …

(2) Despite subsection (1), the Tribunal may order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so.

(3) In making an order under subsection (2), the Tribunal is to have regard to the following matters:

(a) the complexity of the matter and whether it involves a question of law,

(b) whether each party has the capacity to present the party’s case by oral submissions without representation,

(c) the stage that the proceedings have reached,

(d) the type of proceedings,

(e) such other matters as the Tribunal considers relevant.’

Background

2 The applicant for review is a former staff member of the University of New South Wales. His application for review related to a determination made by the University in response to an application for access to documents made by him under the Freedom of Information Act 1989 (FOI Act). The application is one of a number that the applicant has before the Tribunal, to which the University is respondent. The applicant had represented himself through the pre-hearing stages of the matter. At hearing, he continued to represent himself, but towards the close of the proceedings he made an application for certain submissions to be made on his behalf by an associate, Mr McGuirk. Mr McGuirk is a former staff member of the University, and is himself the applicant for review in a number of matters presently before the Tribunal where the University is the respondent.

3 In responding to the applicant’s access application, the University had provided a number of documents within which there was blanked out material. This material was marked as ‘not relevant’, by which the University meant that it was not relevant to the request made by the applicant. (That request was itself an amended and narrower form of the request originally made by the applicant, changes to which the applicant had agreed.) There were some other passages which were blanked out but the marking alongside them indicated that the University claimed that the material was exempt material. The ground for exemption was specified. In this case the ground was either legal professional privilege (see cl 10 of Schedule 1 to the FOI Act) or unreasonable disclosure of personal affairs (see cl 6).

4 The Tribunal had proceeded at hearing by taking account of the applicant’s concerns, scrutinising the documents and giving him an indication as to whether it considered the excisions (some on the basis of relevance and the remainder on the basis of an exemption) to be justified. There were some minor concessions made by the University in light of the Tribunal’s observations, with the result that some additional material was released to the applicant. The applicant had indicated his contentment with this procedure.

5 As this process was ending, the applicant applied for an agent to appear on his behalf. He said that the issue he wanted to address was that ‘relevance was not an exemption’. He explained to the Tribunal that he was not a lawyer, that in his opinion Mr McGuirk had a better understanding of FOI law, and therefore he would like Mr McGuirk to make submissions on his behalf. The University, represented by Ms Toomey, opposed the application. The Tribunal refused the application, giving oral reasons. The following reasons are a revised version of those reasons.

Ruling

6 HIS HONOUR: Just as we were about to complete the hearing on an agreed basis, there is an application by the applicant, Mr Curtin, to have the Tribunal permit him to be represented by an agent.

7 In this matter there was a planning meeting on 14 June and now this hearing today. This matter has proceeded relatively harmoniously.

8 Now the issue which Mr Curtin feels that would be better addressed if Mr McGuirk was permitted to appear as agent has to do with the dichotomy in thinking that is present in the way the University has responded to the request. Some material has been marked not relevant within the pages released and not disclosed; and then other material has been marked with an exemption category and not disclosed. I note also that a substantial body of material has been disclosed.

9 The proposition that I understand is intended to be put forward is that relevance is not an exemption. Well, of course, there is no exemption expressed in that way.

10 The FOI Act is premised on the existence of a request. The request defines the scope of the action that the agency is called upon to undertake. If a request is a very broad request (or what is sometimes called the global request), there are further provisions in the Act which seek to protect agencies from having to respond to requests that are onerous and costly to process. So the Parliament, when it passed the Act, sought to give some protection to agencies against global requests.

11 The Act also has provisions about seeking to foster a relationship of co-operation between the applicant and the agency so as to refine the scope of a request. That occurred here and that occurred in a sensible way. Mr Curtin put in a relatively focused request, one, when you look at the number of documents that fell subject to the request, is not one of the larger ones we have seen here. It still has involved a significant amount of officer time.

12 When an agency is processing any request, there may well be a lot of material examined that proves not to be relevant. That material will often not become known to the applicant, because the documents are freestanding ones entirely unrelated to the request. They will never be mentioned in any schedule of documents affected by the request.

13 On the other hand, sometimes there will be documents affected by the request that have mixed contents – some of the contents relate to the request and some of the contents are not relevant to the request. What is then seen is excisions that cover the not-relevant matters. It can happen that the applicant becomes curious about what those matters might be; and whether the line dividing ‘relevant’ from ‘not relevant’ has been properly drawn.

14 No one seriously suggests that when that process has been engaged in that there is an application of an exemption involved. An exemption can only be invoked in relation to the material relevant to the request. There is no substance whatsoever to the submission that relevance is not an exemption. I do not need to hear from any person, said to be more informed, about that matter.

15 There is no issue of utility or complexity warranting the appearance of an agent, for the reasons given. I am quite happy with the way in which Mr Curtin raised the point that he wished to raise. He raised it clearly.

16 As to the need for an agent in FOI matters, I make the following general observations. FOI proceedings are ones where the role played by the Tribunal is much more active than might be the role played by a Court or Tribunal in many other classes of proceedings. That is manifested by the way the Tribunal uses the procedure called planning meetings to try and work the dispute through in as non-contentious an atmosphere as one can create. The aim is to ascertain the extent to which there are issues that need to be pursued to hearing. Members of the Tribunal in the FOI context should play an active role, as I see it, in steering the proceedings towards resolution without a formal hearing; but of course, if necessary, they will conduct a formal hearing and make formal rulings.

17 This class of proceedings is of necessity one where the Tribunal must, to some extent, stand in the shoes of the applicant, without of course being biased. The Tribunal has to try to appreciate the perspective of the applicant. The applicant is in a disadvantaged relationship. The material most wanted has been withheld from them. The Tribunal has a kind of fiduciary relationship to the applicant in terms of the applicant’s interests. This is not so significant a concern in traditional contested proceedings where the Tribunal can remain relatively disengaged, allow the contesting parties to put on the evidence and make the submissions.

18 It is my view that unrepresented applicants in FOI face a relatively small disadvantage in not having legal representation given the role the Tribunal is meant to play. That is not to say the Tribunal does not have experience of cases where substantial submissions have been received from represented applicants through counsel.

19 So they are the main factors for not being disposed to grant your application Mr Curtin but I do think I should say something on the other matters raised by Ms Toomey.

20 [The President referred briefly to the degree of his personal association with Mr McGuirk, a matter raised by the University, and continued:]

21 But more particularly – and I respect Mr McGuirk’s rights to bring matters before the Tribunal – it seems to me that it is quite undesirable to allow a person to appear as agent before the Tribunal in circumstances where it is well known that the person is involved in litigation and dispute with the opposite party to the proceedings. When the Tribunal is looking at the question of an agent representing a person in circumstances where that agent is not a member of the legal profession, the Tribunal is still concerned to see that similar characteristics to those provided by a member of the legal profession are present – most importantly, a detached and dispassionate approach to the matter. It may be that Mr McGuirk, if allowed to appear, would in fact present his submissions in a detached or dispassionate way, but it seems to me there is a risk to the proceedings that is greater than normal that we might get into other areas of contest. It seems not to be desirable to risk that possibility.

22 The applicant’s is a clear request, it is quite focused and it seems to me that the respondent has made substantial provision of information. The few things that have not been provided are in my view, matters of an extremely minor kind. The substance of the documentation as it relates to you, Mr Curtin, has been released. To that extent the University is to be commended. It has adopted, it seems to me, an approach on this occasion that is generally consistent with the goals of the Act.

23 So for all those reasons the application is refused.