F, M v Attorney-General's Department - [2013] SADC 123

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
F, M v ATTORNEY-GENERAL'S DEPARTMENT
[2013] SADC 123
Judgment of His Honour Judge Tilmouth
5 September 2013
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - EXEMPT DOCUMENTS
Documents withheld from appellant on the grounds of legal professional privilege, and in one instance for reasons of personal safety, upheld as exempt documents.
Freedom of Information Act 1991 (SA) s 17, s 18, s 40(2), s 40(8), s 42(1), Sh 1 Cl 6(1) & 10, Sh 2 (k)&(m); Freedom of Information (Fees & Charges) Regulations 2003 (SA) Sh 1; Federal Magistrates Court Rules 2001 (Cth) r 11.09, r 11.11; Family Law Rules 2004 (Cth) r 6.10; Crockett v Roberts (2002) 11 Tas R 393; Grant v Downs (1976) 135 CLR 674; Esso Australia Resources Ltd v The Federal Commissioner of Taxation (1999) 201 CLR 49; Commissioner of Police v District Court of New South Wales (1993) 31 NSWLR 606, referred to.
Commissioner of Police v Perrin (1993) 31 NSWLR 606; Austin v Deputy Secretary, Attorney-General's Department (1986) 12 FCR 22; Attorney General (NT) v Kearney & Northern Land Council (1985) 158 CLR 500; Waterford v The Commonwealth (1987) 163 CLR 54, applied.
Starkey v Starkey [2008] FamCA 962, discussed.
Crockett v Roberts (2002) 11 Tas R 393; Re Public Trustee (SA) & Keays (1985) 10 Fam LR 610; (1985) FLC 91-651; Grant v Downs (1976) 135 CLR 674; Esso Australia Resources Ltd v The Federal Commissioner of Taxation (1999) 201 CLR 49; Kelway v Kelway (1580) Cary 89, 21 ER 47; Waldron v Ward (1654) Sty 449; 82 ER 853; Pearse v Pearse (1846) 1 De G & Sm 12; (1846) 63 ER 950; Baker v Campbell (1983) 153 CLR 52, 60; Public Transport Authority (WA) v Leighton Contractors Pty Ltd (2007) 34 WAR 279; Mayor of Bristol v Cox (1884) 26 ChD 678; National Employees Mutual General Insurance Association Ltd v Waind (1979) 141 CLR 648; Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1974] AC 405; Starkey v Starkey [2008] FamCA 962, considered.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Nature of the functions, responsibilities and status of a litigation guardian considered.
Almack v Moore [1878] 2 LR Ir 90; Sosa v Carter [1978] WAR 123, applied.
In Re Brocklebank; Ex Parte Brocklebank (1876) 6 Ch D 358; L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Pink v J A Sharwood & Co Ltd [1913] 2 Ch D 286; Lewis v Nobbs (1878) 8 Ch D 591; Ex Parte Shearer [1949] QWN 41; Masterman-Lister v Brutton & Co (Nos 1 & 2) [2003] 1 WLR 1511; Rhodes v Swithenbank [1889] 22 QBD 577; Watson v Watson (2001) 166 FLR 229; Sparham, Woolger & Woolger (Infants by their Next Friend) v Stage Government Insurance Commissioner (1992) 165 LSJS 354; Chapman v Freeman [1962] VR 259; Read v Read [1944] SASR 26; Randall v Randall [1939] P 131; Fryer v Wiseman (1876) 45 LJ Ch 199; Wallace v Wallace (1898) 24 VLR 859; Howell v Lewis (1891) 61 LJ Ch 89; Re Whittall [1973] 3 All ER 35; In Re Barbour's Settlement Trust [1974] 1 All ER 1188; Murray v Sitwell [1902] WN 119; Re Berry [1903] WN 125; Re Birchall; Wilson v Birchall (1880) 16 Ch D 41; Naso v Cottrell (1994) 11 WAR 475; Re Ley's Will Trusts [1964] 1 WLR 640; Re Forsaith's Settled Estates (No 2) (1903) 20 WN (NSW) 190; Re Taylor's Application [1972] 2 QB 369; Anton & Malitsa (No 6) [2009] FamCA 623; Masling v Motor Hiring Co (Manchester) [1919] 2 KB 538; Yakmor v Hamdoush (No 2) (2009) 76 NSWLR 148; Re Flower (1871) 19 WR 578; Hawkes v Cottrell (1858) 27 LJEx 369; Taylor v Underwood (1988) 1146 LSJS 137; Forster v Forster (2012) 47 Fam LR 77; Re E (mental health patient) [1985] 1 All ER 609; Kannis v Kannis (2002) 172 FLR 464; Lloyd v Lioutas (2005) 193 FLR 198, considered.

F, M v ATTORNEY-GENERAL'S DEPARTMENT
[2013] SADC 123
The issue

This is an appeal from a determination of the Ombudsman of 15 March 2013, refusing the appellant access to certain documents held by the Attorney-General’s Department and the Public Trustee for the State of South Australia under the Freedom of Information Act 1991 (SA).
Copies of most of the subject documents are held by both the Public Trustee and the Crown Solicitor’s Office. The Crown Solicitor is exempt from the application of the Freedom of Information Act by reason of clause (k) to Schedule 2 thereof. The Public Trustee is however not so exempt in respect of functions other than those exercised as executor, administrator or trustee: Schedule 2 clause (m). So it is the Public Trustee’s copies which are in question.
Background
The application by the appellant for access to the subject documents arose in this way.[1] He is respondent to proceedings issued in 2007 by his wife (or former wife) initially in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). I gather those proceedings are currently before a Judge of the Family Court of Australia. During the earlier course thereof, a Federal Magistrate made an order pursuant to Rule 11.11 of the Federal Magistrates Court Rules 2001 (Cth) appointing a Litigation Guardian for Mr F. On a later date – 16 March 2009 – the Magistrate appointed ‘the Office of the Public Trustee ... as the Litigation Guardian’. There are precedents for making such orders: Crockett v Roberts,[2] and Re Public Trustee (SA) & Keays.[3]
[1] Name withheld on account of s 121 of the Family Law Act 1975 (Cth).
[2] (2002) 11 Tas R 393, [212].
[3] (1985) 10 Fam LR 610.
The office of the Public Trustee is erected by the Public Trustee Act 1995 (SA). By s 4(4) the Public Trustee is established as a body corporate capable of suing and being sued, and is constituted as an instrumentality of the Crown in right of the State of South Australia. The office has the powers and functions ‘assigned or conferred’ by that Act or any other Act (s 4(4)(e)). The kinds of functions traditionally conferred on the Public Trustee include the administration of estates, the supervision and management of unclaimed property, and the supervision and management of the property of persons under disability or mental incapacity.
The decision of the Federal Magistrate was overturned on appeal by the Full Court of the Family Court on 23 March 2012 in Forster v Forster.[4] In the meantime the Public Trustee conducted the proceedings in the Federal matrimonial jurisdictions pursuant to the order of the Federal Magistrate. The State Crown Solicitor’s office was engaged for the purpose of giving legal advice to the Public Trustee with respect thereto. A senior solicitor employed by the Crown Solicitor was assigned to the case and a barrister from the private Bar specialising in family law was briefed to make appearances from time to time in the proceedings for and on behalf of the Public Trustee.
[4] (2012) 47 Fam LR 77.
The documents sought by the appellant are in the nature of various communications between the Public Trustee and the Crown Solicitor’s office and in some instances counsel retained by the solicitor. These documents were withheld on the grounds of legal professional privilege, bar one which was withheld for what might be termed ‘security reasons’. The documents in dispute are attached to a closed affidavit not made available to the appellant for the inspection of the Court, pursuant to the practice developed by the High Court in Grant v Downs[5] and affirmed in Esso Australia Resources Ltd v The Federal Commissioner of Taxation.[6]
[5] (1976) 135 CLR 674 at 689.
[6] (1999) 201 CLR 49 at [52].
The Freedom of Information Act
The right to appeal to this Court is one conferred by s 40(2) of the Freedom of Information Act, the appellant being a person aggrieved by the determination of the Ombudsman made under Division 1 of the Act. His right of appeal was not disputed by Mr Wait, counsel for the Crown Solicitor. Nor did he suggest that the Public Trustee ought to have been joined as a respondent.
Personal affairs are referable to ‘the composite collection of activities personal to the individual concerned’: Commissioner of Police v District Court of New South Wales.[7] The single document was withheld because it contains personal affairs and was therefore an exempt document pursuant to clause 6(1) to Schedule 1 of the Freedom of Information Act. The Ombudsman accepted that contention. Clause 6(1) to Schedule 1 reads so far as relevant to this case:
[7] (1993) 31 NSWLR 606 at 625 per Kirby P.
6—Documents affecting personal affairs
(1)A document is an exempt document if it contains matter the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
(2)A document is an exempt document if it contains allegations or suggestions of criminal or other improper conduct on the part of a person (living or dead) the truth of which has not been established by judicial process and the disclosure of which would be unreasonable.
Having looked at the document myself, it is clear that it wholly relates – except in one minor irrelevant respect – to the personal affairs of a person or persons other than the appellant, so that aspect of the Ombudsman’s decision must be upheld. It may well be that it also comes within Clause 4 of the first Schedule, but as that basis of exemption was neither claimed nor agitated during the appeal, it need not be pursued any further.
Legal professional privilege
As to the remaining documents, Clause 10 to Schedule 1 of the Freedom of Information Act exempts documents subject to legal professional privilege in these terms:
10—Documents subject to legal professional privilege
(1)A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.
(2)A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency's policy document.
Before considering the documents in question it is fundamental to understand the reach of the legal professional privilege doctrine. It is deeply entrenched in the common law of this country, one recognised at least from Elizabethan times: Kelway v Kelway[8] and Waldron v Ward.[9]In the latter case the Chief Justice is reported to declare that a councillor at the Bar ‘is not bound to make answer for things which may disclose the secrets of his client’s cause’. The privilege exists because otherwise ‘everyone would be thrown upon his own legal resources’: Pearse v Pearse.[10]
[8] (1580) Cary 89, 21 ER 47.
[9] (1654) Sty 449: 82 ER 853.
[10] (1846) 1 De G & Sm 12; 63 ER 950.
Legal professional privilege most notably covers communications between solicitor and client, however it extends to communications with third parties and their lawyers and the lawyers for the client, when made in contemplation of and for the purposes of extant litigation: Baker v Campbell[11] and Public Transport Authority (WA) v Leighton Contractors Pty Ltd.[12] The privilege further extends to counsel engaged in the case, being the alter ego of the instructing solicitor: Mayor of Bristol v Cox.[13]It has, on the other hand, been doubted that it applies to a self represented party: National Employees Mutual General Insurance Association Ltd v Waind[14] and Baker v Campbell.[15]
[11] (1983) 153 CLR 52, 60.
[12] (2007) 34 WAR 279, [12-13], [20].
[13] (1884) 26 ChD 678.
[14] (1979) 141 CLR 648 at 654.
[15] (1983) 153 CLR 52 at 90.
Returning to the documents in question, the bulk of them are either emails or memoranda between the solicitor employed by the Crown Solicitor and the officer having conduct of the file in the Public Trustee’s office, and whose subject matter is entirely the matrimonial litigation. Two are communications solely regarding the subject litigation between the Crown Solicitor and the barrister.[16] The remainder are documents internal to the Public Trustee solely with respect to the litigation.[17] As such they undoubtedly fall squarely within the legal professional privilege on their face and are therefore exempt documents.
[16] Documents 4D and 22.
[17] Documents 15, 61, 62 and 63.
Whose privilege is it?
The point made by the appellant was in essence that the Public Trustee appointed by the terms of the Federal Magistrates order, acts for and on his behalf rather than separately or independently. Therefore he contends that legal professional privilege attaches to him as well as to the Public Trustee acting in his interests, so that it belongs equally to him, as it were. To put the position in another way, his point was that the Public Trustee was his alter ego standing in his shoes, so that the privilege is either his, or in any case one shared with him. There is some support for that point of view, for instance in what Murphy J wrote in Starkey v Starkey:[18]
[49] In particular, the case guardians act in the stead of the husband and conduct the proceedings. When bound by orders they incur personal obligations, but they do so as, in effect, the husband. So when, as here, orders permit and proscribe behaviour in and about the running of a business previously run by the husband and wife, they stand in the shoes of the husband in and about the performance of the orders although they are personally bound by the orders.
[18] [2008] FamCA 962.
Classically the privilege is that of the client, but it is one that can obtain to others having a common or material interest in the litigation, such that it brings that other party within the ambit of confidence that prevails between the legal advisor and the client.[19] An example of this situation is the confidence between liquidator and creditors.[20] It also may be noticed that common interest privilege pertains under the Uniform Evidence Acts in the Australian Capital Territory, New South Wales, Victoria, Tasmania and now the Northern Territory.[21]
[19] Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 and Rank v Film Distributors Ltd v ENT Ltd (1994) 4 Tas R 281 at 294.
[20] Southern Cross Airlines Holdings Ltd (in liq) v Arthur Andersen & Co (1998) 84 FCR 472 at 481.
[21] Section 122(5).
A subsidiary point made by Mr F was as I understand it, that the employed solicitor from the Crown Solicitor’s office was not performing duties and functions as a legal advisor, but merely in the capacity of an agent for the Public Trustee, that is she was not acting in the capacity of a lawyer, qua lawyer. He emphasised several times that she was ‘outsourced’ to the Public Trustee and was actually physically seconded to work in the Public Trustee’s office. These points may be disposed of first.
In Austin v Deputy Secretary, Attorney-General's Department,[22] Mr Austin sought access to a file kept by the Australian Government solicitor in respect of court proceedings against him involving a criminal charge. The decision refusing to release the documents was upheld on the ground of legal professional privilege. It was held that the office of the Australian Government Solicitor was ‘acting in a capacity which attracted the operation of the document of legal professional privilege’.[23] The Full Court of the Federal Court in Austin applied Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2),[24] deciding there was no distinction for the purpose of a claim to legal professional privilege between solicitors in private practice and salaried legal advisors, or for that matter salaried legal advisors employed by an arm of executive government.[25] That decision was later cited with approval in Attorney General (NT) v Kearney & Northern Land Council,[26] upholding a claim to protection on account of legal professional privilege with respect to communications between offices of the Northern Territory government and the government’s legal offices generated for the purpose of obtaining legal advice in relation to regulation making powers.
[22] (1986) 12 FCR 22.
[23] Above at 25.
[24] [1974] AC 405.
[25] Above at 430-431.
[26]
Subsequently in Waterford v The Commonwealth,[27] a claim to privilege was upheld with respect to documents created in the Department of the Treasury relating to budget papers, on the same basis. It was held that the doctrine of legal professional privilege applied to communications between an agency of government and salaried government legal offices, where there existed a professional relationship between them which secures to the advice an independent character, notwithstanding the employment relationships.[28]
[27] (1987) 163 CLR 54.
[28] Above per Mason and Wilson JJ at 62, per Dawson J at 96.
In light of these authorities this aspect of the appellant’s case simply cannot be sustained. It is not to the point that the lawyer concerned was an employee of a Government Department. It makes no difference at all that she was physically housed in the office of the Public Trustee rather than the Crown Solicitor’s Department. It is the nature of the legal relationship between them that sustains the legal professional privilege.
The resolution of this case then turns on the nature of the legal relationship between the Public Trustee in the Public Trustee’s capacity as Litigation Guardian, appointed under an order of a Court, and the Crown Solicitor’s Office. Obviously in that capacity the Public Trustee is not acting in the capacities of executor, administrator, or trustee.
Case guardian
The position of a Litigation Guardian embodies an office well known to the civil courts for centuries under various guises, most notably the next friend and the Guardian ad litem. These were usually appointed to represent children or persons otherwise under disability. In Scots Law they were known as tutors and pupils respectively. These offices were the forerunner of what is now more or less uniformly defined as a ‘Litigation Guardian’.
The honorific originated in the Courts of Chancery exercising inherent power to protect those in need of protection on account of mental or physical incapacity, or infancy: In Re Brocklebank; Ex Parte Brocklebank,[29] L v Human Rights and Equal Opportunity Commission.[30]An appointment was made because the litigant was legally disabled and could not therefore assert rights or form judgments about the conduct of the litigation: Dey v Victorian Railways Commissioners.[31] It is clear from the authorities that such persons did not become a party to the proceedings: Pink v J A Sharwood & Co Ltd,[32] Taylor v Underwood. [33]
[29] (1877) 6 Ch D 358.
[30] (2006) 233 ALR 432, [24].
[31] (1949) 78 CLR 62, 83 and 113.
[32] [1913] 2 ChD 286 at 289.
[33] (1988) 146 LSJS 137.
The next friend and its successors, is and always was regarded as akin to an officer of the court and as such was subject to the supervisory or paternal jurisdiction of the Court, so as to protect the processes of the Court as well as the parties: Lewis v Nobb,[34] Ex Parte Shearer,[35] Masterman-Lister v Brutton & Co (Nos 1 & 2),[36] Rhodes v Swithenbank,[37] Watson v Watson.[38]A further rationale for appointing such a person was explained in Ex parte Brocklebank [39] by James LJ as being ‘in order to give security for the costs to the defendant.’
[34] (1878) 8 ChD 591.
[35] [1949] QWN 41.
[36] [2003] 1 WLR 1511, [31], [65].
[37] (1889) 22 QBD 577 at 579.
[38] (2001) 166 FLR 229; (2001) 28 Fam LR 481; [2001] FamCA 1470, [20].
[39] (1877) 6 Ch D 358, at 360.
An examination of the authorities leads to the distillation of the following principles in respect of the powers, responsibilities and legal status of the Litigation Guardian and its predecessors, namely that they:
.represented the person before the Court and held a duty to ensure every proper and legitimate step for that person’s representation was taken: Read v Read,[40] Randall v Randall,[41] Watson v Watson;[42]
.retained full authority over the conduct of the proceedings in the same way as an ordinary party: Fryer v Wiseman,[43] Rhodes v Swithenbank;[44]
.were required to act in the best interests of the person under disability: Rhodes v Swithenbank,[45] Wallace v Wallace;[46]
.should so act under legal advice: Howell v Lewis,[47] Re Whittall,[48] In Re Barbour's Settlement Trust;[49]
.were not entitled to appear personally before the court: Murray v Sitwell[50] and Re Berry;[51]
.might compromise an action even though that might be ‘often unpalatable to the individual litigant’: Re Birchall; Wilson v Birchall;[52] Naso v Cottrell,[53] Re Ley's Will Trusts,[54] In Re Forsaith's Settled Estates (No 2),[55] In Re Taylor's Application,[56] Anton & Malitsa (No. 6);[57]
.became personally liable for costs ordered against the party represented: Masling v Motor Hiring Co-accused, [58] Yakmor v Handoush (No 2)[59] as well as for the cost of the solicitor or counsel engaged: Re Flower,[60] Hawkes v Cottrell,[61] but were entitled consequentially to an indemnity for costs from the person under disability: Sparham, Woolger & Woolger (Infants by their Next Friend) v State Government Insurance Commission,[62] Watson v Watson,[63] unless costs were improperly incurred: Chapman v Freeman. [64]
[40] [1944] SASR 26 at 28.
[41] [1939] P 131 at 134-135.
[42] (2001) 166 FLR 229; (2001) 28 Fam LR 481 [19] &[22].
[43] (1876) 45 LJ Ch 199.
[44] [1889] 22 QBD 577 at 578.
[45] (1889) 22 QBD 577, 878.
[46] (1898) 24 VLR 859.
[47] [1891] 61 LJ Ch 89, 89.
[48] [1973] 3 All ER 35.
[49] [1974] 1 All ER 1188; [1974] 1 WLR 1198, 1199.
[50] [1902] WN 119.
[51] [1903] WN 125.
[52] (1880) 16 Ch D 41, 43.
[53] (1994) 11 WAR 475, 478.
[54] [1964] 1 WLR 640.
[55] (1903) 20 WN (NSW) 190, 190-191.
[56] [1972] 2 QB 369 at 382.
[57] [2009] FamCA 623, [2].
[58] [1919] 2 KB 538.
[59] (2009) 76 NSWLR 148.
[60] (1871) 19 WR 578.
[61] (1858) 27 LJEx 369.
[62] (1992) 165 LSJS 354.
[63] (2001) 166 FLR 229; (2001) 28 Fam LR 481 [22].
[64] [1962] VR 259.

It can be seen on the basis of these authorities, that in some respects there was a merger of the interests of the Litigation Guardian with the party under disability, but it was far from completely so. In other circumstances their rights and responsibilities diverged in that the Litigation Guardian was never a party to the litigation and was always subject to the supervision of the appointing Court. Moreover those interests and responsibilities became quite disparate when it came to the duty to take legal advice as to the appropriate way to proceed and to appear only by way of counsel, in the power to compromise against the wishes of the disabled party within the constraints of the acting in the best interests of that party, and because of the personal liability that attached to the Litigation Guardian.
Furthermore, in point of principle and practice, the solicitor engaged by the Guardian was the solicitor for the Guardian, not for the person under disability, because the authority of the next friend or Guardian came from the court itself, rather than from the person under disability: Almack v Moore,[65] Sosa v Carter.[66] As explained by the Court of Appeal in Re E (mental health patient),[67] a reason for this is that confidential information may come into the possession of the Guardian which ‘should not be inspected by anyone but the court itself’.
The position under the Family Law Act
[65] [1878] 2 LR Ir 90 at 93.
[66] [1978] WAR 123.
[67] [1985] 1 All ER 609, 616.
Turning specifically to proceedings in the Family or Federal Circuit Courts of Australia, a definition of ‘guardian’ is found in the dictionary to the Family Law Rules 2004 (Cth) as meaning ‘a person appointed by the Court under Rule 6.10 to manage and conduct a case for a child or a person with a disability ...’. The dictionary proceeds to define a person as including ‘a corporation, authority or party’.[68]
[68] This position was originally a ‘next friend’ under the former Order 15, r 14 of the Family Law Rules 1984 (Cth).
The Federal Magistrates Court Rules 2001 (Cth) provided by Rule 11.09(1) the party needing a Litigation Guardian may ‘start, continue, respond to or seek to be included as a party to a proceeding only by his or her Litigation Guardian’. Reading the cases in the matrimonial causes jurisdictions, demonstrates that the principles developed by the common law and the courts of equity were picked up and applied by the family law courts. Apart from Watson v Watson and Anton v Malitsa,[69] amongst them are Samootin v Shea,[70] Kannis v Kannis[71] and Lloyd v Lioutas,[72] not to mention Forster v Forster itself.[73]
[69] Cited above.
[70] [2000] FamCA 1874.
[71] (2002) 172 FLR 464; (2002) 30 Fam LR 83; (2003) FLC 93-135.
[72] (2005) 193 FLR 198; (2005) 33 Fam LR 588.
[73] (2012) 47 Fam LR 77.
Once it is understood that the legal representative engaged by a Litigation Guardian represents the Guardian, not the person under disability, that the authority of the Litigation Guardian comes from the court itself and not from the person under disability, and that the Guardian has the right to conduct proceedings in a way that does not necessarily reflect the views of the disabled party, the true status and position of the litigation guardian becomes clear. It is not one that coincides with the rights or interests of that party. It is to act independently of that party. For those reasons, legal professional privilege persists between the Litigation Guardian and its legal advisors, not between the party under disability and those advisors. The claim for exemption on the grounds of legal professional privilege by the Public Trustee was therefore correctly upheld. The appeal on this basis must therefore be dismissed.
Fees and charges
Finally there is an appeal against the fees levied for the documents that were supplied to the appellant. His submission, as I understood it, was that as there was an absolute right to access the documents, that right would be unduly burdened or eroded by the imposition of fees.
The appellant was requested to place a deposit, which he did of $200. The capacity of agencies to charge for the supply of information under the Freedom of Information Act is furnished in the first place by s 17(1) which enables a request for a deposit to be made, and in the second by s 18(1) and s 18(3) which entitle agencies to refuse to continue dealing with the applicant if the deposit is not paid. The amount of such charges is dealt with in Schedule 1 of the Freedom of Information (Fees & Charges) Regulations 2003 (SA), which prescribe that there should be no charge for the first two hours spent by the agency in dealing with the application and at an hourly rate thereafter.
In this case the regulations authorised charges of $363.98, however the agency determined the application would not be subject to any further levy above the deposit. The fact of the matter is that the charges that were levied were authorised by the Freedom of Information Act and the regulations made thereunder and they were perfectly reasonable in the circumstances. This aspect of the appeal is therefore of no substance.
Conclusion and orders
In the result the appeal fails on all grounds. The documents in question were all properly held to be exempt documents for the reasons advanced earlier. Counsel for the respondent very fairly indicated that no order for costs would be sought if the respondent succeeded in upholding the decision of the Ombudsman, consistent with the policy of s 40(8) of the Freedom of Information Act and s 42G(2) of the District Court Act 1991 (SA). There will accordingly be no order as to costs of the appeal.

(1985) 158 CLR 500, at 510 per Gibbs CJ, 517 per Mason and Brennan JJ, and 522 per

Wilson J.