Gerard Michael McGuirk v Deputy Director General, the Cabinet Office, New South Wales (No. 2)
[2007] NSWADT 301
•19 December 2007
CITATION: McGuirk (No. 2) v Deputy Director General, The Cabinet Office, New South Wales [2007] NSWADT 301 DIVISION: General Division PARTIES: APPLICANT
RESPONDENT
Gerard Michael McGuirk
Deputy Director General, The Cabinet Office, New South WalesFILE NUMBER: 063029 HEARING DATES: 24 July 2007 SUBMISSIONS CLOSED: 24 July 2007
DATE OF DECISION:
19 December 2007BEFORE: Montgomery S - Judicial Member CATCHWORDS: Representation of party MATTER FOR DECISION: Preliminary matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989CASES CITED: Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150
Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186
Cianfrano v Attorney General's Department of NSW [2007] NSWADT 205
ianfrano v Chief Executive Officer, NSW Rail Authority [2004] NSWADT 223
Director General, Attorney General's Department v Cianfrano [2006] NSWADTAP 26
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Director of Public Prosecutions v Shirvanian & Anor 44 NSWLR 129
Egan v Willis (1998) 195 CLR 424
Grimwade v Meagher [1995] 1 VR 446
Jackson v Sterling Industries (1987) 162 CLR 612
Jago v District Court of New South Wales (1989) 168 CLR 23
Jarratt v Commissioner of Police (2005) 221 ALR 95
Johnston v Department of Education and Training [2007] NSWADT 117
Kalil v Bray (1977) 1 NSWLR 256
McGuirk v Attorney General's Department [2007] NSWADT 138
McGuirk v Director General, The Cabinet Office [2007] NSWADT 9
MG v R [2007] NSWCCA 57
Mills v. Meeking 169 CLR 214
Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSW ADT 99
R v Hillier [2007] HCA 13
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663
Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Cafe Tiffany) [2006] NSWCA 185
Wood & Anor v Bergman (No 2) [2003] NSWADT 175REPRESENTATION: APPLICANT
RESPONDENT
In person
M Dala-Pozza, solicitorORDERS: 1. Mr McGuirk’s application for orders that the Cabinet Office not be permitted to be represented in these proceedings by the Crown Solicitor is dismissed; 2. The matter is set down for further directions on 29 January 2008 at 2.00 PM..
REASONS FOR DECISION
1 Mr McGuirk applied under the Freedom of Information Act 1989 (“the FOI Act”) for access to documents held by The Cabinet Office. He was not satisfied with the determination of his application and sought review in this Tribunal. The history of the matter is set out in McGuirk v Director General, The Cabinet Office [2007] NSWADT 9.
2 The Crown Solicitor is the solicitor on the record appearing for the Respondent in these proceedings. Mr Dalla-Pozza is a solicitor in the Crown Solicitor’s Office. He appeared at the hearing of the matter. Mr McDonnell, the Assistant Crown Solicitor, also appeared at Directions hearings in the matter. Each appeared on behalf of the Crown Solicitor.
3 Mr McGuirk has requested that I make an order that the Crown Solicitor be barred from representing The Cabinet Office in these proceedings. He framed his request as follows:
4 Both Mr Dalla-Pozza and Mr McGuirk provided detailed written submissions and each provided oral submissions to elaborate on their written submissions. I have considered the submissions and the authorities to which I have been referred.
1. The Applicant seeks an order pursuant to section 71 (2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"), that the Cabinet Office of New South Wales not be permitted to [be] represented in these proceedings by the Crown Solicitor of New South Wales, being an agent of a particular class, for the purpose of the presentation of oral submissions to the Tribunal in relation to the whole of these proceedings.
2. In the alternative, the applicant seeks an order from the Tribunal, in accordance with the law generally, that the Crown Solicitor be barred from representing the Cabinet Office in these proceedings on the grounds that the Crown Solicitor has engaged, in these proceedings and in other proceedings before the Tribunal to which Mr McGuirk is a party, in a pattern of conduct which amounts to an abuse of the processes of the Tribunal.
3. Further in the alternative, the applicant seeks an order from the Tribunal, in accordance with the law generally, that the Crown Solicitor be barred from representing the respondent in these proceedings on the grounds that the Crown Solicitor has consistently breached his obligations to the people of the State of New South Wales by breaching the' Model Litigant Policy' of the Attorney General's Department of New South Wales of September 2004, the 'Code of Conduct and Ethics' issued by the Attorney General's Department of NSW dated December 2001, and the Law Society of New South Wales 'Professional Conduct and Practice Rules' made under the Legal Profession Act 2004.
5. Further in the alternative, the applicant seeks an order from the Tribunal, in accordance with the law generally, that the Crown Solicitor be barred from representing the Cabinet Office in these proceedings on the basis that the Crown Solicitor has made public statements and published a paper in which he clearly states his opposition to the Freedom of Information regime in New South Wales, in clear breach of his obligations as Crown Solicitor of the State of New South Wales.
Issues
5 The issues to be determined are whether the Tribunal has the power to make the orders that Mr McGuirk seeks and if so whether it should do so in the circumstances of this matter.
Applicable legislation
6 Section 71 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) provides:
7 Section 88(1) of the ADT Act provides:
71 Representation of parties
(1) A party to proceedings before the Tribunal may:
(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.
(a) appear without representation, or
(b) be represented by an agent, or
(c) if the party is an incapacitated person-be represented by such other person as may be appointed by the Tribunal under subsection (4).
(3) In making an order under subsection (2), the Tribunal is to have regard to the following matters:
(4) …
(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.
8 Section 90 of the ADT Act provides:
88 Costs
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs."
9 Section 5 of the FOI Act provides:
90 Rules may provide for practice and procedure
(1) Rules of the Tribunal may be made, not inconsistent with this Act, for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Tribunal or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Tribunal under this or any other Act.
(2) Without affecting the generality of subsection (1), rules of the Tribunal may be made for or with respect to:
(3) Without limiting the generality of section 42 of the Interpretation Act 1987 , the rules of the Tribunal may also prescribe different rules for:
(a) the commencement of proceedings in the Tribunal, or
(b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Tribunal (including proceedings in relation to internal appeals and external appeals), or
(c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Tribunal, or
(d) the practice and procedure to be followed in the mediation or neutral evaluation of any matter under Part 4, or
(e) the functions of the Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Tribunal.
Note: Section 42 of the Interpretation Act 1987 provides for the matters for which statutory rules may generally make provision.
(a) each of the Divisions, and
(b) different classes of matters.
Mr McGuirk’s Case
5 Objects
(1) The objects of this Act are to extend, as far as possible, the rights of the public:
(2) The means by which it is intended that these objects are to be achieved are:
(a) to obtain access to information held by the Government, and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.
(3) It is the intention of Parliament:
(a) by ensuring that information concerning the operations of the Government (including, in particular, information concerning the rules and practices followed by the Government in its dealings with members of the public) is made available to the public, and
(b) by conferring on each member of the public a legally enforceable right to be given access to documents held by the Government, subject only to such restrictions as are reasonably necessary for the proper administration of the Government, and
(c) by enabling each member of the public to apply for the amendment of such of the Government’s records concerning his or her personal affairs as are incomplete, incorrect, out of date or misleading.
(4) Nothing in this Act is intended to prevent or discourage the publication of information, the giving of access to documents or the amendment of records as permitted or required by or under any other Act or law.
(a) that this Act shall be interpreted and applied so as to further the objects of this Act, and
(b) that the discretions conferred by this Act shall be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information.
10 In his written submissions Mr McGuirk argued that the Tribunal has the power to make the orders he seeks pursuant to section 71(2) of the ADT Act. He says that in order to make these orders pursuant to section 71(2) the Tribunal must form the view that the Crown Solicitor is 'an agent of a particular class'. He says that in the ordinary meaning of that expression, the Crown Solicitor is clearly 'an agent of a particular class'.
11 In this regard, Mr McGuirk submits that the decision of Pearson JM in Johnston v Department of Education and Training [2007] NSWADT 117 is clearly wrong. He relies on views expressed by the Tribunal’s President in Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186.
12 In Johnston the objected to the representation of the respondent by Mr McDonnell and he has requested that an order under Section 71 of the ADT Act. In refusing the application Pearson JM stated:
13 In Curtin the Tribunal’s President considered an application by Mr McGuirk to be able to appear as an agent for the applicant. He stated at paragraph 16 and following:
9. I am not satisfied that s71(2) enables me to make the order sought by the applicant, for two reasons. First, s71(2) refers to “an agent of a particular class”. The Macquarie Dictionary (3rd ed) defines “class” as including:
10. Applying the ordinary meaning of the word “class”, section 71(2) applies to a person who is a member of a group which can be defined by reference to particular shared or similar “qualities”. Those “similar qualities” may, for example, be the possession of qualifications of a particular kind (for example, legal or medical qualifications), or experience of a particular kind. By referring to a “class”, s71(2) might, in appropriate circumstances, enable the Tribunal to direct that a party not be represented by a legal practitioner. It does not extend to allowing the Tribunal to direct that a party may not be represented by a specific individual. If legal representation is appropriate, it is the party’s decision which legal practitioner represents it.
1. a number of persons, things, animals etc, regarded as forming one group through the possession of similar qualities; a kind; sort
14 Mr McGuirk argues that the President identified him as a member of a class of individuals ‘involved in litigation and dispute with the opposite party to the proceedings’. Mr McGuirk says that he is involved in litigation and dispute with the Crown Solicitor. Accordingly, the Crown Solicitor is a member of that same class. He says he that therefore ‘it is quite undesirable to allow [the Crown Solicitor] to appear as agent before the Tribunal’. He also states that the history of this matter clearly demonstrates that the Crown Solicitor does not demonstrate ‘a detached and dispassionate approach to the matter’.
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.
…
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.
15 He argues for a broad approach to the meaning of the term ‘class’ for the purposes of section 71(2). He argues that the Crown Solicitor is one of a class of persons (or offices) who is bound by a code of conduct and the Model Litigant Policy. He also argues that the Crown Solicitor is a class of agent with a special obligation to ensure that the law of NSW is upheld. He is an individual but also a member of a class i.e. a class of solicitors with special obligations. Accordingly, he submits that the Tribunal should find as a fact that the Crown Solicitor is 'an agent of a particular class' for the purposes of section 71(2) of the ADT Act.
16 Mr McGuirk contends that the clear words of section 71(2) permit the Tribunal to make orders in relation to representation for ‘or any part of the proceedings’. He argues that it is clearly within the power of the Tribunal to make the order notwithstanding the stage reached in the proceedings. In any event, the matter is at the merits stage. The question is whether release of the documents would somehow hamper the proper administration of government.
17 In the alternative, Mr McGuirk says that the threshold legal question for the Tribunal is whether the Tribunal has power to control abuse of its own processes. He says that the statute must be interpreted with respect to the common law. Mr McGuirk contends that the Tribunal has that power and can make the orders he seeks pursuant to that power. He relies on the decision of the NSW Court of Appeal in Director of Public Prosecutions v Shirvanian & Anor 44 NSWLR 129 and views expressed by the High Court in Mills v. Meeking 169 CLR 214 and Jago v District Court of New South Wales (1989) 168 CLR 23 in regard to the court’s power to prevent abuses of process. The power is based in part on the need to maintain public confidence in the administration of justice.
18 Mr McGuirk says that Part 3 of ADT Act confers the power to make Rules and enforce them. He submits that it is clear from section 90 of the ADT Act that the Tribunal can make Rules. He says that if it can make Rules, it must be able to enforce them.
19 He contends that the power of referral for contempt under section 131 of the ADT Act is for the enforcement of orders and not for the control of proceedings. Once an order is made, the Tribunal’s role is completed therefore a party will need to seek enforcement of orders in another forum. He says that this is a separate power to that of controlling proceedings and preventing abuse of process. It is essential that the Tribunal has an ability to control its processes and it is a necessary incidental power for the Tribunal to be able to fulfil its statutory function. He submits that it would be extraordinary to find that the Tribunal does not have those powers.
20 In the alternative, he submits that the Tribunal should refer the Crown Solicitor to the Supreme Court for contempt under section 131 of the ADT Act.
21 Mr McGuirk says that in the circumstances, the Tribunal should exercise its power and order that the Crown Solicitor be barred from representing The Cabinet Office in these proceedings.
22 He points to a number of matters and submits that the Tribunal can and should draw the inference that the conduct of the Crown Solicitor amounts to an abuse of process. He relies on the decision in R v Hillier [2007] HCA 13 as authority for the principle that the Tribunal must consider and weigh all of the circumstances and decide whether it is reasonably open on the evidence to infer that the Crown Solicitor has engaged in an abuse of process. He says that the circumstances to be considered show that the Crown Solicitor has deliberately mislead the Tribunal, behaved in a vexatious and oppressive manner, taken technical points to string out proceedings, and sought improper costs orders in an attempt to prevent Mr McGuirk and other persistent applicants from exercising their rights under the FOI Act. He says that rather than acting to further the objects of the FOI Act and the ADT Act, the Crown Solicitor has acted to subvert the intent of those two Acts.
23 He particularly points to the conduct of the Crown Solicitor in General Division matter No. 063263. In that matter Judicial Member Higgins considered an the application by the Crown Solicitor that Mr McGuirk present himself for a 'show cause' hearing following his failure to appear at a planning meeting on 15 February 2007. A 'show cause' hearing was held in respect of the matter on 12 April 2007 and a decision in this matter was delivered on 25 June 2007: McGuirk v Attorney General's Department [2007] NSWADT 138.
24 Mr McGuirk points to the objects of the FOI Act set out in section 5 of that Act. In particular he points to the statement in section 5(3) that it is the intention of Parliament that the FOI Act be interpreted and applied so as to further the objects of the Act, and that the discretions conferred by the Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, the disclosure of information. He says that in relation to the 'show cause' process in matter No. 063263, the Crown Solicitor acted to subvert the intent of the FOI Act.
25 Mr McGuirk also points to a speech with the title: "Government lawyers, the Executive and the rule of law" made by the Crown Solicitor on 12 September 2006. A copy of the speech is annexed to Mr McGuirk's submissions. In the speech the Crown Solicitor referred to the decision in Director General, Attorney General's Department v Cianfrano [2006] NSWADTAP 26. Mr McGuirk contends that the speech demonstrates a bias against the FOI regime. He points to the decision of the NSW Court of Appeal in MG v R [2007] NSWCCA 57 as authority for the proposition that comments by the Crown Solicitor warrant his removal from these proceedings.
26 Mr McGuirk also points to correspondence from the Crown Solicitor in which the Crown Solicitor threatened Mr McGuirk with an application for costs. He says that there is nothing improper about threats per se. However, he argues that the Crown Solicitor has adopted an oppressive practice of seeking costs in an effort to prevent him from exercising his rights under the FOI Act. Mr McGuirk argues that it should be rare that costs are applied for in FOI proceedings. For the Crown Solicitor to apply for costs on a routine basis is an abuse of process. The Tribunal can only infer that CSO is seeking to shut down vexatious litigants. He says that seeking costs to shut down persistent litigants is an abuse of process and improper conduct. He further asserts that the Crown Solicitor is acting without instructions in an attempt to shut him down and to cover up matters that should be exposed under FOI.
27 He asserts that the Crown Solicitor has an obligation to inform himself properly as to the factual background in a matter and if the facts or law has been misstated he has an obligation to correct them. He has an obligation to correct errors of law that his client puts forward and fails to do so. He points to the Crown Solicitor’s failure to point out that a statement of law in the Cabinet Office’s determination is wrong and has deliberately attempted to mislead the Tribunal by allowing that misstatement of the law to stand uncorrected.
28 Mr McGuirk argues that there is an abundance of circumstantial evidence that must be taken into account and on which the Tribunal can draw appropriate inferences. The Tribunal must consider both evidence and material: Kalil v Bray (1977) 1 NSWLR 256
29 Mr McGuirk says that the Crown Solicitor has engaged in a persistent abuse of the processes of the Tribunal. He submits that if the Crown Solicitor is not prepared to adhere to his statutory obligations to act as a model litigant and his meet his ethical obligations he should not be permitted to appear before the Tribunal. In support of this position he points to the decision in Grimwade v Meagher [1995] 1 VR 446, in which Mandie J found that Mr Meagher should be barred from representing his client.
The Cabinet Office’s Case
30 Mr Dalla-Pozza filed detailed written submissions and also made oral submissions. He contends that the Tribunal does not have the power under section 71(2) of the ADT Act to make an order restraining the Crown Solicitor from representing the respondent in these proceedings. The Crown Solicitor is an "individual" not a "class of persons". He relies on the reasoning of Pearson JM in Johnston v Department of Education and Training in support of that submission. He submits that Curtin is incorrect.
31 In the alternative, the respondent submits that such an order goes beyond the scope of that subsection. The provision is restricted to representation "for the purpose of presenting oral submissions". Mr Dalla-Pozza says that in the present case, the Crown Solicitor has already presented all of his oral submissions and it only remains for him to make oral submissions reply. He argues that the potential for a party to make further oral submissions appears to be a condition precedent to the exercise of that power. Therefore, the respondent submits that the Tribunal lacks the power in the present case to make such an order.
32 The respondent further says that Mr McGuirk’s delay in bringing the application means that the Tribunal should decline to make such an order even if it decides that the power in section 71(2) is still available to it. Pursuant to section 71(3)(c), the "stage of the proceedings" is a consideration to which the Tribunal may have regard. Mr Dalla-Pozza says that the purpose of section 71(2) appears to be to give the Tribunal the power to control the orderly progression of a hearing before it. If an agent were to make oral submissions of an inappropriate nature or length, the Tribunal could disqualify the person from continuing those submissions. In the present case, he submits that the order sought could no longer be of any utility to the Tribunal in promoting the efficient or fair conduct of this litigation. This is due to the fact that the respondent has substantially completed its oral submissions.
33 Mr Dalla-Pozza further also submits that Mr McGuirk has provided insufficient evidence in support of his application. Mr McGuirk alleges that the Crown Solicitor has abused the processes of the Tribunal and has acted in breach of the Model Litigant Policy; the Code of Conduct of the Attorney General's Department and the Professional Conduct Rules made under the Legal Profession Act 2004.
34 In relation to Mr McGuirk’s assertion, Mr Dalla-Pozza acknowledges that the Crown Solicitor delivered the speech referred to on 12 September 2006. He says that in his speech, the Crown Solicitor commented on the decisions in Egan v Willis (1998) 195 CLR 424 and Jarratt v Commissioner of Police (2005) 221 ALR 95. The former case concerned the power of the Legislative Council to order State papers to be produced to it by the Executive and the latter the meaning of section 51 of the Police Act 1990. The Crown Solicitor made a few general remarks concerning the media reporting of the actions of Executive Government and the principle of the Rule of Law. He also spoke of developments in the law of Legal Professional Privilege. In this latter context, he referred briefly to the decision in Director General, Attorney General's Department v Cianfrano [2006] NSW ADT AP 26.
35 Mr Dalla-Pozza says that it is immediately apparent from the context of his remarks that the Crown Solicitor was directing his comments towards developments in the doctrine of Legal Professional Privilege and not to the effectiveness or otherwise of the FOI regime. Moreover, the Crown Solicitor appeared to express a favourable view of the conclusion reached by the Appeal Panel and its reasoning. Thus, in the speech, there is no general criticism of the Tribunal, the FOI Act or the FOI regime. Thus, the premise that the speech demonstrates a bias against the FOI regime or against the Tribunal's approach to questions of FOI on the part of the Crown Solicitor cannot be supported by the facts.
36 Moreover, he argues, even if the Crown Solicitor had expressed his opposition to the way in which the FOI Act was operating or decisions reached by the Tribunal under the FOI Act, the respondent submits that this fact would be irrelevant. He says that the Court of Appeal decision in MG v R (a case in which a Crown Prosecutor had made extra-curial remarks which related to a case which she was then prosecuting before the District Court) is of no help to Mr McGuirk because of important distinctions between MG and the present case. Firstly, there is a distinction between criticising an Act generally and criticising a court or tribunal responsible for applying the Act. There can be nothing inappropriate in criticising the general operation of a statute. Secondly, in MG, the Crown Prosecutor had made comments relating to a specific matter still before the courts. It was this activity that caused her to be in breach of Bar Rule 59. Mr Dalla-Pozza submits that it is apparent that the Court of Appeal did not intend to say that a legal practitioner could not make extra-curial remarks about the state of the law generally.
37 Thirdly, MG was concerned with a prosecution of a criminal matter and it is apparent that the Court of Appeal intended to confine its remarks to the duties of a Crown Prosecutor. The Crown Solicitor is not a Crown Prosecutor. Nor are the present proceedings criminal. There is no prosecution involved in the present case. Thus, the ethical obligations which apply to a Crown Prosecutor under the Prosecution Rules do not apply to the Crown Solicitor in a case such as the present.
38 Thus, the respondent submits, the giving of this address cannot conceivably amount to improper conduct or otherwise justify the making of the orders sought by Mr McGuirk.
39 In regard to Mr McGuirk's allegation that the Crown Solicitor engaged in improper conduct in regard to matter No. 063263, Mr Dalla-Pozza says that Mr McGuirk’s assertions amount to nothing more than mere speculation. He says that the propriety of the actions of the solicitor with carriage of that matter cannot be called into question. All she can be shown to have done was to advance her client's position in the absence of the appearance of Mr McGuirk by requesting the Tribunal for a show cause hearing. The Tribunal asked Mr McGuirk to show cause because Mr McGuirk had previously made an FOI application which had been determined and which covered the same documents covered by his more recent application. Prima facie, this is sufficient grounds for making an application to the Tribunal to dismiss an application under section 73(5)(h). In any event, Judicial Member Higgins found that the submissions of the respondent at the planning meeting were "appropriately made".
40 In any event, given that all of this took place in separate proceedings to the present, Mr Dalla-Pozza submits that this evidence cannot support any order being made in the present case.
41 The respondent submits that it is plain that the Crown Solicitor’s advice to Mr McGuirk that he had accepted such instructions to seek costs does not demonstrate any improper conduct. Mr Dalla-Pozza submits that it is usual practice in most jurisdictions for a party, in the event of being successful, to seek his costs from the unsuccessful party. A legal practitioner is customarily instructed in the scope of his or her retainer to take steps on behalf of his or her client to recover those costs. Whilst it may not be the norm in proceedings in the Tribunal for such costs orders to be made, section 88 of the ADT Act expressly makes it a possibility. The Tribunal has, on certain occasions made an award of costs against an individual (Cianfrano v Chief Executive Officer, NSW Rail Authority [2004] NSWADT 223; Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSW ADT 99).
42 The Crown Solicitor put Mr McGuirk on notice of the respondent's instructions. It evidences no improper conduct on the part of the respondent or the Crown Solicitor. It is part of the process by which the respondent seeks an order for which section 88 of the ADT Act enables it to ask.
43 In the respondent's submission, none of the evidence pointed to by Mr McGuirk justified the making of Order 1.
44 The respondent submits that the Tribunal does not have jurisdiction at "general law" to make the order sought. The respondent says that such a power does repose in the Supreme Court as an incident of the Court's inherent supervisory jurisdiction and from the status as legal practitioners as "officers of the court". However, the Tribunal does not have powers which are equivalent to the inherent powers of a court. The Tribunal differs from the Supreme Court in a number of important respects eg it is not a superior court and it owes its existence to statute: see generally Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Cafe Tiffany) [2006] NSWCA 185 at [26]-[27]).
45 Broad powers corresponding to the inherent jurisdiction of non-statutory courts have been conferred on statutory courts. Thus, a statutory superior court possesses similar powers to those courts which do not owe their existence to statute.
46 In relation to the Federal Court, the High Court in Jackson v Sterling Industries (1987) 162 CLR 612 stated:
47 Furthermore, in Jago v District Court (NSW) and DPP v Shrivanian and Anor it was held that, respectively, the District Court of New South Wales and a Local Court which are both inferior statutory courts possessed some powers which were broadly equivalent to the inherent jurisdiction of non-statutory superior courts. Those cases were concerned with the power to order a permanent stays to avoid an abuse of process.
"In relation to a statutory Court such as the Federal Court it is wise to avoid the use of the words 'inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction and powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power".
48 Mr Dalla-Pozza submits that the Tribunal is in a similar position to the Administrative Appeals Tribunal and that there is no room for the implication of broad powers equivalent to those impliedly conferred on the Federal Court: see Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663. The structure of the ADT Act leaves no room for a similar implication to the one the High Court made in Jackson. This is shown by the lack of express powers the Tribunal is given to enforce its own procedure. The Tribunal lacks the power to punish for contempt; instead, this must be referred to the Supreme Court. Furthermore, non- compliance with the orders of the Tribunal is not enforceable and it has no direct power to enforce a judgement debt.
49 Moreover, Mr Dalla-Pozza submits that it is significant that, in all previous authorities, the power to restrain legal practitioners from appearing before it has been expressed as limited to a court. It can only be conceived of as a power relating to a court given that it only arises because legal practitioners as "officers of the court". The Court of Appeal has held that the Tribunal is not, for the purposes of the Constitution or for section 86(2) of the Trade Practices Act 1974 (Cth), a "court of the state": see Trust Company of Australia at [29].
50 It follows, in the respondent's submission, that the conferral of any powers analogous to the inherent supervisory powers of a court should not be implied into the Tribunal’s constituting statute. This analysis is consistent with the presence of section 71 (2) in the ADT Act. The presence of a power to control persons appearing before it would not be necessary if the Tribunal had an inherent supervisory power. This provision indicates that Parliament did not intend to impliedly confer a power to prevent practitioners from appearing before it.
51 In the alternative, the respondent notes that, at general law, the courts have made it abundantly plain that the power to restrain legal practitioners from appearing before it is one that will only ever be used with a great deal of caution. In Grimwade v Meagher Mandie J formulated the test as follows:
52 Assuming these powers to be available, the Tribunal should require a high standard of proof before exercising its powers. The respondent submits that the evidence of Mr McGuirk falls considerably short of discharging this burden. No fair minded reasonably informed member of the public could conclude, on the basis of the available evidence, that the Crown Solicitor should be restrained from acting in these proceedings. Thus, even if the Tribunal finds that it does have the power at general law to make this order, the respondent submits that it should not be made in the present
"whether a fair-minded, reasonably informed member of the public would conclude that proper administration of justice required that counsel be prevented from acting giving due weight to the public interest that litigants should not be deprived of their counsel of choice without good cause."
53 Mr Dalla-Pozza submits that Mr McGuirk application must also fail in regard to the other orders sought for the same reasons. It says (i) the Tribunal lacks the power to make such an order and (ii) the evidence in this case does not justify the making of this order. He further says that there is no evidence that The Cabinet Office engaged in improper conduct.
54 Mr Dalla-Pozza concedes that it is appropriate for the Tribunal to make inferences but he says that there must be a basis for the inference. In the present proceedings no such basis exists. There are only allegations of improper conduct and this is insufficient to permit the Tribunal to make the inferences that Mr McGuirk urges.
55 For these reasons, Mr Dalla-Pozza submits that the application should be dismissed.
56 The respondent also says that there are "special circumstances" which warrant the Tribunal making an award of costs to the respondent in relation to this application. The application made by Mr McGuirk was clearly hopeless. The weakness of Mr McGuirk's case is a matter amounting to a "special circumstance" (Cianfrano v Department of Commerce. Mr McGuirk is an experienced litigant, having appeared for himself before the Supreme Court of New South Wales as well as in numerous proceedings before the Tribunal. His degree of experience, not only in the Tribunal but also in the Supreme Court, means that he should be expected to have been able to assess that the present application was hopeless. Mr McGuirk has been put on notice of the respondent's intention to seek costs in this matter. Further, he is aware that his conduct would cause the respondent additional costs (see Cianfrano v State Rail at [13]).
57 Additionally, Mr McGuirk has speculated and cast aspersions on the conduct of several blameless legal practitioners. The Tribunal should take steps to discourage the ventilation of these potentially damaging matters without a proper factual basis.
58 In the circumstances, the respondent submits that it is appropriate to award the respondent its costs.
Findings
59 In this matter, Mr McGuirk seeks an order under section 71(2) of the ADT Act. He can only succeed in this application if the Crown Solicitor is 'an agent of a particular class' for the purposes of that section. Pearson JM in Johnston v Department of Education and Training held that not to be the case. Views of the President in Curtin tend to favour Mr McGuirk’s view. I prefer this approach. For the reasons argued by Mr McGuirk it is my opinion the Crown Solicitor is 'an agent of a particular class' for the purposes of section 71(2) of the ADT Act. The Crown Solicitor clearly has a role that is distinct from other solicitors and in my view this sets him apart from them.
60 I also agree with Mr McGuirk’s argument that it is within the power of the Tribunal to make the order under section 71(2) of the ADT Act notwithstanding the stage reached in the proceedings.
61 However, I do not agree with Mr McGuirk’s view that the power given to the Tribunal under section 71(2) of the ADT Act allows the Tribunal to make the order that he seeks. In my view, it only permits representation to be restricted "for the purpose of presenting oral submissions". It does not allow an order that the Crown Solicitor be barred from representing the Cabinet Office in the proceedings.
62 If I am wrong in that view, I would not grant the order sought. I do not agree that the inferences the Mr McGuirk urges can be properly drawn from the evidence and other material before me. I also consider that conduct of a party in other proceedings before the Tribunal are correctly directed to the Judicial Member presiding in those proceedings. I am not satisfied that the Crown Solicitor has abused the processes of the Tribunal. There is insufficient evidence or other material to support a finding that the Crown Solicitor has acted in breach of the Model Litigant Policy; the Code of Conduct of the Attorney General's Department or the Professional Conduct Rules.
63 I agree that ordinarily it will not be improper conduct on the part of a party to put the other party on notice of instructions to seek costs under section 88 of the ADT Act. In Cianfrano v Attorney General's Department of NSW [2007] NSWADT 205 I made some comments in regard to the care that needs to be taken in the case of self-represented litigants to ensure that applications for costs are not misconstrued as intimidation or threats designed to discourage individuals with legitimate claims. Those comments are equally applicable in this matter. However, I do not accept that in the circumstances of this case the Crown Solicitor has engaged in improper conduct by asserting his instructions to seek costs.
64 In have read the transcript of the speech made by the Crown Solicitor on 12 September 2006. I do not consider that the speech demonstrates a bias against the FOI regime or against the Tribunal's approach to questions of FOI on the part of the Crown Solicitor. I agree with Mr Dalla-Pozza’s assessment of that speech and his submission that even if the Crown Solicitor had expressed his opposition to the way in which the FOI Act was operating or decisions reached by the Tribunal under the FOI Act, it would not justify the order that Mr McGuirk is seeking. Further, for the reasons argued by Mr Dalla-Pozza, I do not consider that Mr McGuirk’s argument is assisted by the Court of Appeal decision in MG v R.
65 I therefore do not agree that the inferences the Mr McGuirk urges can be properly drawn.
66 I also agree with Mr Dalla-Pozza’s arguments that the Tribunal does not have jurisdiction at "general law" to make the orders sought. As has been pointed out, the Tribunal lacks the power to punish for contempt; the Tribunal lacks the power to address non- compliance with its orders and it has no direct power to enforce a judgement debt. For the reasons argued by Mr Dalla-Pozza, it is my view that Parliament did not intend to impliedly confer a power on the Tribunal to prevent practitioners from appearing before it. In these circumstances the conferral of any powers analogous to the inherent supervisory powers of a court should not be implied into the ADT Act.
67 If I am wrong in that view, I would not grant the order sought because the evidence and material before me falls considerably short of satisfying the test formulated by Mandie J in Grimwade v Meagher. A high standard of proof is required before exercising the power to deprive a litigant of their counsel of choice. That standard of proof has not been met in this case.
68 For these reasons Mr McGuirk’s application must fail.
69 For the same reason, I do not propose to make a report to the Supreme Court pursuant to section 131 of the ADT Act.
70 I note that The Cabinet Office has sought costs in this matter. In considering an application for an award of costs pursuant to section 88, the Tribunal will generally look to the conduct of the parties and consider whether they have conducted the proceedings in a way that has disadvantaged another party, been unreasonable in their conduct of the proceedings or have brought proceedings that were without merit.
71 The Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 considered what might amount to "special circumstances" justifying a costs order under section 88 of the ADT Act. Santow JA (with whom Mason P and Brownie AJA agreed) said at [55]
72 His Honour went on to find at [60]:
"unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal's power under s. 88 to award costs."
73 A costs order may be made where the application to the Tribunal "lacked any conceivable merit in fact or law": Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [4]; Wood & Anor v Bergman (No 2) [2003] NSWADT 175 at [13].
"[I]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of 'serious unfairness' is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration."
74 In this matter, I agree that I have found that Mr McGuirk’s application was without merit and that The Cabinet Office has been put to expense that might have been avoided. However, Mr McGuirk has raised issues of significant import. I accept Mr McGuirk’s explanation for his delay in bringing the application and I do not consider that it constitutes ‘special circumstances’ in this matter. In the circumstances I do not consider that this is a case where the discretion to award costs should be exercised.
75 I note that Mr McGuirk has yet to file submissions in the substantive matter. The appropriate course is to have the matter listed for further directions to determine the further course of proceedings.
Order
1. Mr McGuirk’s application for orders that the Cabinet Office not be permitted to be represented in these proceedings by the Crown Solicitor is dismissed.
2. The matter is set down for further directions on 29 January 2008 at 2.00 PM..
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