McGuirk v Independent Commission Against Corruption - [2008] NSWCA 302

New South Wales

Court of Appeal

CITATION: McGuirk v Independent Commission Against Corruption [2008] NSWCA 302
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 November 2008

JUDGMENT DATE:
3 November 2008

JUDGMENT OF: Giles JA at 1; Hodgson JA at 16

EX TEMPORE JUDGMENT DATE: 31 October 2008

DECISION: Application for leave to appeal dismissed with costs.

CATCHWORDS: Leave to appeal - construction of s 9 Freedom of Information Act - Tribunal member reversed by Appeal Panel - judge restored member's decision - important question - but Appeal Panel's decision aberrant - no substantial argument on appeal - leave refused - judge awarded costs against applicant - prospects that so unreasonable as to be outside proper exercise of discretion slight - leave also refused.

CASES CITED: Independent Commission against Corruption v Cripps (Sully J, 27 August 1996, unreported)

PARTIES: Gerard Michael McGuirk - Applicant
Independent Commission Against Corruption - Opponent

FILE NUMBER(S): CA 40847/07

COUNSEL:
Applicant in person
A M Mitchelmore - Opponent

SOLICITORS: I V Knight, Crown Solicitor - Opponent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 30070/06

LOWER COURT JUDICIAL OFFICER: Simpson J

LOWER COURT DATE OF DECISION: 2 March 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147

CA 40847/07

GILES JA
HODGSON JA
Monday 3 November 2008

Judgment

McGUIRK v INDEPENDENT COMMISSION AGAINST CORRUPTION

JUDGMENT

1 GILES JA: This is an application for leave to appeal from the substantive and costs decisions of Simpson J on an appeal from an Appeal Panel of the Administrative Decisions Tribunal.

2 The applicant requested access under the Freedom of Information Act 1989 (“the FOI Act”) to a report referred to in her Honour’s reasons as the Madgwick report. The circumstances of the generation of that report and the proceedings which followed the request can be seen in her Honour’s reasons: Independent Commission Against Corruption v McGuirk [2007] NSWSC 147. After internal review, on an application for external review a Tribunal member held against Mr McGuirk. The Appeal Panel took a different view. Simpson J restored the result before the Tribunal member.

3 The request activated consideration of s 9 of the FOI Act. It provides -

“ Certain bodies etc exempt from operation of Act

4 Schedule 2 identifies a number of exempt bodies and offices, including ICAC, and specifies the functions in relation to which they are exempt from the operation from the FOI Act. Relevantly, ICAC is exempt from that operation in relation to “corruption prevention, complaint handling, investigative and report functions”.

5 Together with s 9 there must be considered the definition of “exempt document” in s 6(1) of the FOI Act. The definition includes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 302
Decision Date: 31 October 2008

CaseChat Overview and Summary

McGuirk applied for leave to appeal to the Court of Appeal from a decision of a judge who had set aside a decision of the Appeal Panel of the Administrative Decisions Tribunal. The Appeal Panel had reversed the decision of a Tribunal member. The dispute concerned the construction of section 9 of the *Freedom of Information Act 1989* (NSW).

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted. This involved determining whether there was an important question of law or public interest involved, or whether the Appeal Panel's decision was so aberrant as to warrant appellate intervention, and whether there was a substantial argument to be made on appeal. A secondary issue related to the judge's award of costs against McGuirk.

Giles JA and Hodgson JA considered that while the construction of section 9 of the *Freedom of Information Act* was an important question, the Appeal Panel's decision was aberrant and there was no substantial argument to be made on appeal. Consequently, leave to appeal was refused on this ground. Regarding the costs order, the Court found that the prospects of demonstrating that the judge's decision to award costs was so unreasonable as to be outside the proper exercise of discretion were slight, and therefore leave to appeal on this ground was also refused.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McGuirk v Independent Commission Against Corruption [2008] NSWCA 302 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	3 November 2008
JUDGMENT DATE:	3 November 2008
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 16
EX TEMPORE JUDGMENT DATE:	31 October 2008
DECISION:	Application for leave to appeal dismissed with costs.
CATCHWORDS:	Leave to appeal - construction of s 9 Freedom of Information Act - Tribunal member reversed by Appeal Panel - judge restored member's decision - important question - but Appeal Panel's decision aberrant - no substantial argument on appeal - leave refused - judge awarded costs against applicant - prospects that so unreasonable as to be outside proper exercise of discretion slight - leave also refused.
CASES CITED:	Independent Commission against Corruption v Cripps (Sully J, 27 August 1996, unreported)
PARTIES:	Gerard Michael McGuirk - Applicant Independent Commission Against Corruption - Opponent
FILE NUMBER(S):	CA 40847/07
COUNSEL:	Applicant in person A M Mitchelmore - Opponent
SOLICITORS:	I V Knight, Crown Solicitor - Opponent

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 30070/06
LOWER COURT JUDICIAL OFFICER:	Simpson J
LOWER COURT DATE OF DECISION:	2 March 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Independent Commission Against Corruption v Gerard Michael McGuirk [2007] NSWSC 147