McGuirk v Director General, Attorney General's Department

[2008] NSWADT 326

CITATION:	McGuirk v Director General, Attorney General’s Department [2008] NSWADT 326
DIVISION:	General Division
PARTIES:	APPLICANT (Gerard) Michael McGuirk RESPONDENT The Director General, Attorney General’s Department
FILE NUMBER:	083014
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	25 September 2008
DATE OF DECISION:	8 December 2008
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Application to disqualify on grounds of bias - Application for dismissal on grounds of being frivolous, vexatious or lacking substance
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	McGuirk v Attorney General’s Department [2007] NSWADT 138 McGuirk v Director General, Attorney-General’s Department [2008] NSWADTAP 9 McGuirk v Director General, Attorney-General’s Department [2007] NSWADTAP 38 McGuirk v Director General, Attorney-General’s Department [2006] NSWADT 265 McGuirk v University of New South Wales [2008] NSWADT 312 Trlin v Director General, Department of Fair Trading [2000] NSWADT 192 University of NSW v McGuirk [2006] NSWSC 1362
REPRESENTATION:	APPLICANT In person RESPONDENT M Dalla-Pozza, solicitor
ORDERS:	1. The applicant’s application that I disqualify myself from determining this matter is dismissed 2. The applicant’s application is dismissed pursuant to paragraph 73(5)(h) of the Administrative Tribunal Act 1997 3. The respondent’s application for costs is dismissed.

1 This is an application by Mr McGuirk seeking review of a decision of the Attorney General’s Department (‘the respondent’) under the Freedom of Information Act 1989 (‘the FOI Act’) in regard to his request of 30 November 2007 for access to three specified documents. The documents specified were as follows:

‘1. Submissions to the Attorney General dated 21 April 2004, seeking the approval of the Attorney General for the Crown Solicitor to represent officers of the University of New South Wales who had been charged with criminal breaches of section 20 “ protection against reprisals ” of the Protected Disclosure Act 1974.

2. Submission to the Attorney General dated 27 April 2004, seeking similar approval as above.

3. Submissions to the Attorney General dated 1 February 2005 seeking the approval of the Attorney General for the engagement of senior counsel to represent the defendants in the matter above.”

2 In the internal review determination the Director General of the respondent advised that the respondent held submissions 1 and 3, but did not hold submission 2. The Director General went on to explain that Mr McGuirk may be mistaken as he believed that submissions 1 and 2 were the same document. In regard to the submissions which the respondent did hold, the Director General determined to refuse Mr McGuirk access to these on the grounds they were exempt documents under clause 10 of Schedule 1 of the FOI Act. In making his determination the Director General also considered whether the correct and preferred decision was to refuse him access to the documents not withstanding they were exempt: see University of NSW v McGuirk [2006] NSWSC 1362.

3 When the matter first came before the Tribunal at directions hearing, Mr Bhalla, solicitor for the respondent invited Mr McGuirk to withdraw his application as the documents in issue had already been the subject of consideration by the Tribunal and the Appeal Panel in another review application he had made. Mr McGuirk declined to withdraw his application and by consent orders were made for the filing and serving of evidence and submissions to progress his review application. As directed, on 5 May 2008, the respondent filed its submissions. In these submissions the respondent made an application for orders that Mr McGuirk’s application be dismissed under paragraph 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) on the grounds that the application was frivolous, vexatious and lacking in substance.

4 In its submissions the respondent also made an application for costs under section 88 of the ADT Act.

5 Mr McGuirk responded to the respondent’s submissions by filing and serving a letter dated 7 May 2008 complaining about the conduct of the Director General and the Crown Solicitor and seeking orders that the respondent comply with the orders that had been made at the directions hearing. He subsequently filed and served submissions on 3 June 2008. In these submissions he was critical of the conduct of the officers of the respondent and the Crown Solicitor in dealing with his FOI request and review application and pointed to the requirements of paragraph 73(5)(b) of the ADT Act (i.e. the requirement that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings).

6 On 19 June 2008, when the matter next came before the Tribunal for directions the respondent requested time to file and serve submissions in reply to Mr McGuirk’s submissions. Mr McGuirk also sought an order giving him time to respond to these submissions if necessary. Orders were made in this regard and the parties also consented to the respondent’s application, for an order that Mr McGuirk’s application be dismissed, be dealt with on the papers. Mr McGuirk’s allegation of improper conduct by officers of the respondent and the Crown Solicitor’s Office was also agreed to be dealt with on the papers. Mr McGuirk subsequently took issue with this order in his written submissions of 25 September 2008.

7 The respondent filed its submissions in reply on 11 July 2008 and as mentioned above, Mr McGuirk filed his response on 25 September 2008. In his response, Mr McGuirk made an application that I disqualify myself from determining this matter on the grounds of actual and apprehended bias. His submissions also included an application that I re-open a review application he had made previously and which was decided during 2007: see McGuirk v Attorney General’s Department [2007] NSWADT 138. That application has no relevance to these proceedings and is being dealt with separately.

Issues

8 The matters in issue in this application are as follows:

(a) whether I should disqualify myself from determining this application on grounds of actual or apprehended bias. For the reasons set out below I find that there is no evidence to support Mr McGuirk’s application in this regard and it is therefore dismissed;

(b) whether Mr McGuirk’s application for review is frivolous, vexatious or otherwise misconceived or lacking in substance and should be dismissed pursuant to paragraph 73(5)(h) of the ADT Act. For the reasons set out below I have found that the application should be dismissed;

(c) whether there are special circumstances which warrant an award of costs in favour of the respondent pursuant to section 88 of the ADT Act. For the reasons set out below I found that no special circumstances existed warranting an order for costs in this application.

Application that I disqualify myself

9 Mr McGuirk’s application that I disqualify myself is primarily based on a general assertion of ‘pro-agency’ bias by me. In support of this assertion Mr McGuirk cited the following:

(a) my decision in McGuirk v Attorney General’s Department [2007] NSWADT 138 in which I dismissed his application for review pursuant to paragraph 73(5)(h) of the ADT Act . It was Mr McGuirk’s assertion that this decision was wrong as in response to a subsequent FOI request for the same documents the respondent had found that it held 14 documents which fell within the terms of his request;

(b) an unsigned and undated document that Mr McGuirk purported to have been prepared by a law student of the University of New South Wales who had attended a hearing before me, on 21 March 2007, of another review application by Mr McGuirk; and

(c) the ‘persistent failure by members of the Tribunal to use the powers conferred on the Tribunal under section 58 of the FOI Act, and section 73(5)(b) of the ADT Act while making widespread use of its power under section 88 of the ADT Act.’

10 I set out the relevant principles in regard to the disqualification of judicial officers on grounds of actual or apprehended bias in another recent application made by Mr McGuirk: see McGuirk v University of New South Wales [2008] NSWADT 312 at [8] to [12]. These principles equally apply to this application and it is unnecessary to repeat them.

11 In his other application Mr McGuirk relied on essentially the same material as he relies on in this application. The only difference is the document of the purported law student. I assume that this is the document I refused to accept when Mr McGuirk made his other application: see McGuirk v University of New South Wales [2008] NSWADT 312 at [22]. I had also refused to accept this document on several previous occasions. However, due to the relatively informal manner in which the Tribunal deals with matters before it, Mr McGuirk appears to have taken the opportunity to file it together with his written submissions. For the reasons expressed at [22] of my earlier decision, I remain of the view that the document is of no assistance to me determining this application. The appropriate material to be placed before the Tribunal is the transcript of the day in question and for McGuirk to make submissions in regard thereto.

12 In McGuirk v University of New South Wales [2008] NSWADT 312 at [13] to [24], I fully considered the matters which are similar to those relied on by Mr McGuirk in this application. Mr McGuirk has raised nothing in this application which would alter my findings in the other application. Accordingly, I find that Mr McGuirk has failed to provide material that evidences I have acted with such ‘partisanship or hostility’ that demonstrates that my mind is made up in regard to this application. Nor has he produced material that evidences ‘a fair-minded lay observer might reasonably apprehend’ that I might not bring an impartial mind to the matters that are in issue in this applications.

13 Accordingly, Mr McGuirk’s application that I disqualify myself from determining this application is dismissed.

Application under paragraph 73(5)(h) of the ADT Act

14 Section 73 of the ADT Act is a provision regarding the procedures of the Tribunal. The section deals with matters such as the Tribunal being able to determine its own procedures subject to the ADT Act and the rules of the Tribunal (section 73(1)), the Tribunal not being bound by the rules of evidence (section 73(2)), the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (section 73(3) and to act as quickly as is practicable (section 73(5)(a)).

15 Paragraph 73(5)(h) provides that the Tribunal ‘may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance’.

16 In Trlin v Director General, Department of Fair Trading [2000] NSWADT 192 at [18] Judicial Member Britton (as she then was, said the following in regard to paragraph 73(5)(h):

‘18. In effect [it] allows the Tribunal to safeguard its own process from conscience or unconscious abuse by litigants whose cause of action are frivolous, vexatious, misconceived or lacking in substance. In general terms, an application which is brought on the same grounds as an application which has been previously decided, and which raises no new issues, will fall into one or more of those categories and will not be permitted to proceed.’

17 A similar finding was made by me in the decision of McGuirk v Attorney General’s Department [2007] NSWADT138 where at [30] I said:

‘… I am satisfied that the very issue the applicant seeks to raise in this application in regard to the five documents for which the exemption of legal professional privilege has been claimed have been fully argued in the earlier decision/file no. 053361. Having appealed that decision the applicant was at liberty to argue the same issues again before the appeal panel and he should not be allowed to raise the same issues in respect to the same documents that were the subject of this application. To do so would in my opinion be an abuse of process. Alternatively, I find that the application insofar as it relates to the five documents in issue lacks any substance.’

18 Mr McGuirk does not appear to dispute that the decision the subject of review is a decision in regard to documents which came within the terms of an earlier decision of the respondent for which he sought review. Nor does he appear to dispute that the decision of the respondent in regard to the documents in question remains the same; namely that Mr McGuirk be refused access to the documents as they are exempt documents under clause 10 of Schedule 1 of the FOI Act (i.e. they contained matter to which legal professional privilege attaches). The earlier decision of the respondent, insofar as it relates to the documents in issue in this application, was affirmed by the Tribunal at first instance (see McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265) and also on appeal (see McGuirk v Director General, Attorney General’s Department [2007] NSWADTAP 38 and McGuirk v Director General, Attorney General’s Department [2008] NSWADTAP 9).

19 What Mr McGuirk appears to contend is that by reason of the provisions of the FOI Act he is given a right to make any number of applications for access to an agencies document and the agency is obliged to deal with each application in accordance with the terms of the FOI Act, even if the document to which his FOI application relates was a document that fell within the terms of an earlier FOI application he had made. It is Mr McGuirk’s contention that if the agency again determines to refuse him access to the document, and he is dissatisfied with this and makes an application for review to the Tribunal, then the Tribunal is obliged to deal with his application in the usual way, regardless of whether it has previously reviewed a decision of the agency in regard to the same document. That is, paragraph 73(5)(h) of the ADT Act has no application and the respondent’s conduct in seeking an order under this paragraph has been made on an improper basis; namely to prevent him obtaining access to a document which he contends is not privileged. He goes on to state it is arguably ‘corrupt conduct’ by officers of the respondent and its legal representatives.

20 Mr McGuirk explained that his FOI request arose following my decision in McGuirk v Attorney General of New South Wales [2007] NSWADT 280. That decision concerned a review of a decision of the Attorney General in regard to a request by Mr McGuirk for access to the same three submissions that are the subject of this application. The Minister’s decision in that application was that the Minister did not hold the documents requested. The decision of the Minister was affirmed and I note that an appeal is pending in regard to that decision.

21 In my opinion, the express words of the FOI Act do not necessarily support Mr McGuirk’s contention. However, even if he is correct the Tribunal’s jurisdiction on review and the procedures when dealing with a review application is governed by the relevant provisions of the FOI Act and the ADT Act. In this regard the procedures set out in section 73 of the ADT Act apply, including paragraph 73(5)(h). That is, the FOI Act does not limit in any way the Tribunal’s powers under this paragraph when dealing with an application for review of a decision that has been made by an agency under the FOI Act. Accordingly, it applies to this application.

22 I agree with the above comments of Judicial Member Britton in Trlin that paragraph 73(5)(h) of the ADT is an express power vested in the Tribunal to safeguard its own process from conscience or unconscious abuse by litigants whose application is brought on the same grounds as a previous application of the applicant and which has been decided, and which raises no new issues.

23 Accordingly the question to be determined is whether:

(a) the documents the subject of this application were also the subject of the application that was determined by Judicial Montgomery in McGuirk v Director General, Attorney General’s Department [2006] NSWADT 265 (‘the decision of JM Montgomery’);

(b) the decision of the respondent in regard to the documents is the same and the grounds relied on by the respondent in reaching the decision is the same;

(c) JM Montgomery’s decision on reviewing the earlier decision of the respondent included a review in regard to the documents the subject of this application; and

(d) there are any new issues that arise in this application that were not addressed in the decision of JM Montgomery.

24 (a) Are the documents the same?

The respondent attached to its submissions a copy of the FOI application of Mr McGuirk that was the subject of the decision of JM Montgomery. In that FOI application Mr McGuirk had requested access to 6 categories of document which included:

5. Copies of any documents showing a line of delegation from the Attorney General to the Solicitor General which would enable the Solicitor to approve on behalf of the Attorney General the representation of Professor John Niland and Roger Layton by the Crown Solicitor in the McGuirk v Niland & Ors matter.

6. Copies of any internal memoranda, emails, file notes, minutes of meetings and other similar documentation held by the Crown Solicitor in regard to the representation of Niland et al. by the Crown Solicitor in the McGuirk v Niland & Ors matter.

25 In its determination of this FOI application, the respondent prepared a schedule of documents it held that fell within the terms of this request. This schedule included the documents that are submission 1 and 3, the subject of this application. These submissions were also the subject of the decision of JM Montgomery: see at [13] item I. Accordingly, I am satisfied that the documents at issue in this application are the same documents that were in issue before JM Montgomery.

26 (b) Is the decision of the respondent the same?

I am satisfied that the decision of the respondent the subject of review in regard to the documents (i.e. the submissions’) is the same; namely a decision to refuse Mr McGuirk access to the documents on the ground that they are an exempt document under clause 10 of Schedule 1 of the FOI Act.

27 (c) JM Montgomery’s decision

In his decision, at [31] to 43], JM Montgomery set out in some detail the submissions made by Mr McGuirk in regard to the respondent’s claim that the submissions and other documents were exempt on the grounds of legal professional privilege. This included Mr McGuirk’s submissions of improper conduct by officers of the respondent. At [45] to [52] of his decision JM Montgomery set out his findings. At [45] JM Montgomery made a finding that the submissions were privileged and exempt under clause 10 (see also at [52] and [55]). He also considered and made a finding in regard to the residual discretion (see [53] and [54]).

28 (d) Are there any new issues?

As mentioned above, Mr McGuirk appealed the decision of JM Montgomery. On appeal Mr McGuirk challenged each of the findings of JM Montgomery, including his finding in regard to the submissions the subject of this application: see McGuirk v Director General, Attorney General’s Department (GD) [2007] NSWADT 38 at [44]. The Appeal Panel dismissed Mr McGuirk’s appeal on a question of law. It granted leave for the appeal to be extended to the merits in regard to the residual discretion; see University of New South Wales v McGuirk [2006] NSWSC 1362. The Appeal Panel subsequently determined to dismiss Mr McGuirk’s appeal: see McGuirk v Director General, Attorney General’s Department [2008] NSWADTAP 9. There are otherwise no new issues that have arisen. The content of the documents are the same and the circumstances in which they were brought into existence remain the same and there is otherwise no new evidence of waiver or any other relevant matter in regard to the documents.

29 In my opinion, as this application raises the same issues that were at issue in a review application of Mr McGuirk that the Tribunal has previously considered and determined, both at first instance and on appeal, for the Tribunal to again consider these would mean that the Tribunal would hear and determine a review application that was frivolous and lacking in substance. Accordingly, it is appropriate in safeguarding its own processes that the Tribunal makes an order under paragraph 73(5)(h) of the ADT Act and dismisses this application.

Alleged improper conduct of officers of the respondent and the Crown Solicitor

30 As mentioned above, Mr McGuirk contended that the Tribunal did not have any power to determine the alleged improper conduct of the officers of the respondent and the Crown Solicitor on the papers. That power is vested in the Tribunal under section 76 of the ADT Act. It provides that the Tribunal may ‘determine proceedings’ on the papers without holding a hearing ‘if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.’ It was Mr McGuirk’s contention that I had not satisfied myself of this pre-condition prior to making my direction to deal with all issues on the papers, including those raised by Mr McGuirk about improper conduct.

31 At all times, the substantive application before the Tribunal was the respondent’s application for dismissal under paragraph 73(5)(h) of the ADT Act. Mr McGuirk’s allegations were ancillary thereto as it was his assertion that the respondent’s should be ordered to comply with the original orders that had been made and that its application for dismissal was in defiance of those orders and another deliberate attempt to frustrate his right of access to the submissions he had requested. The most appropriate way to deal with these issues was to deal with them together with the substantive application and I had been of this view at all times. This was confirmed by the detailed submissions filed by the respondent on 5 May 2008 and Mr McGuirk on 3 June 2008. Accordingly, it was on the basis of this material and Mr McGuirk’s submissions during the 19 June 2008 directions hearing that I formed the view that all matters in issues at that time could adequately determined on the papers and made the orders accordingly.

32 In my opinion the allegations made by Mr McGuirk are without any foundation. The respondent was at all times at liberty to make the application for an order under paragraph 73(5)(h) of the ADT Act. It was an application that should perhaps have been made when the matter first came before the Tribunal. However, when it was made, the application was complete in that detailed submissions were filed and the supporting material. It was also an application Mr McGuirk should have anticipated in light of what had been said on the first occasion.

33 I have otherwise read and considered the submissions of Mr McGuirk in regard to the alleged improper conduct. In my view these do not raise anything of substance which require any further examination or consideration by the Tribunal.

Costs

34 The Tribunal has no inherent power to award costs. Its power to award costs arises by virtue of section 88 of the ADT Act which relevantly 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.’

35 The power to award costs is a discretionary power and in order to obtain a costs order and applicant has two hurdles to overcome. The first hurdle is to satisfy the Tribunal that there are ‘special circumstances’ and the second hurdle is to satisfy the Tribunal that the circumstance warrant an award of costs: see Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT164 at [29]. The term ‘special circumstances’ have defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exception’. The mere fact of success in an application will not of itself constitute special circumstances. Practice Note 12 (reissued on 11 May 2005) provides that special circumstances are those where ‘a party has conducted the proceeding in a way that disadvantages another party to the proceedings’. The practice note goes on to give examples of where this may arise.

36 In my opinion having regard to the manner in which this application proceeded before the Tribunal there are no special circumstances which warrant an order for costs. As mentioned above, when the matter first came before the Tribunal, the solicitor for the respondent, Mr Bhalla invited Mr McGuirk to withdraw his application on the grounds that a decision the subject of review had previously been considered by the Tribunal at first instance and on appeal in regard to the documents in question. Mr McGuirk’s refusal to withdraw may be viewed as being unreasonable in light of earlier decisions of the Tribunal in regard its powers under paragraph 73(5)(h). However, the legal representative of the respondent made no formal application on this occasion for the application to be dismissed, or that such an application was to be made. He instead consented to orders that the matter progress in the usual way.

37 The matter only came before the Tribunal on one further occasion. At this time the respondent’s application and submission had been filed and Mr McGuirk had filed his submissions in reply. Orders were then made for further submissions to be filed.

38 Otherwise there were no substantial delays by Mr McGuirk in filing and serving his material.

39 Accordingly, for the reasons set out above, the respondent’s application for costs is dismissed.

Orders

1. The applicant’s application that I disqualify myself from determining this matter is dismissed.

2. The applicant’s application is dismissed pursuant to paragraph 73(5)(h) of the Administrative Tribunal Act 1997.

3. The respondent’s application for costs is dismissed.