New South Wales Attorney General's Department and anor v Cianfrano and anor (GD)

[2007] NSWADTAP 71

Appeal Panel - Internal

CITATION:	New South Wales Attorney General's Department and anor v Cianfrano and anor (GD) [2007] NSWADTAP 71
PARTIES:	APPELLANT/CROSS RESPONDENT NSW Attorney General's Department RESPONDENT/CROSS APPELLANT Robert Cianfrano
FILE NUMBER:	079055; 079057
HEARING DATES:	20 November 2007
SUBMISSIONS CLOSED:	20 November 2007
DATE OF DECISION:	3 December 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Molony P - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	costs - jurisdiction - leave to extend to the merits
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063425
DATE OF DECISION UNDER APPEAL:	09/06/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 25 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 Oshlack v Richmond River Council (1998) 193 CLR 72R v Ingrassia (1997) 41 NSWLR 447 Saggers v Director General, Attorney General’s Department [2006] NSWADTAP 11 Water Conservation and Irrigation Commission (NSW) v Browning (1974) 74 CLR 492
REPRESENTATION:	J McDonnell, solicitor In person
ORDERS:	1. The Tribunal’s decision to dismiss the application for want of jurisdiction is affirmed; 2. Leave to appeal against the merits of the Tribunal’s decision in relation to costs is refused; 3. The Tribunal’s decision that each party bears his or her own costs is affirmed.

REASONS FOR DECISION

Introduction

1 Mr Cianfrano applied for access to documents under the Freedom of Information Act 1989 (FOI Act). The Attorney General’s Department did not make a decision in relation to that application within the 28 days prescribed in the legislation. It was then deemed to have made a decision to refuse access to those documents: FOI Act, section 24(2). Instead of applying for an internal review of that decision, Mr Cianfrano applied to the Tribunal for external review. The Tribunal found that it did not have jurisdiction to hear that application because it was a requirement that Mr Cianfrano first apply for internal review. The Department applied for costs. The Tribunal refused that application.

2 These reasons relate to two appeals against the Tribunal’s decision: one by Mr Cianfrano against the decision that the Tribunal had no jurisdiction to hear his application and the other by the Department in relation to the Tribunal’s decision to refuse to award costs. Each party is entitled to appeal on a question of law, but needs the Appeal Panel’s permission for the appeal to be extended to the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act): section 113(2)).

Grounds for jurisdiction appeal

3 The general rule is that a person who is aggrieved by a determination made by an agency must apply for an internal review of the determination within 28 days after the determination was made, or deemed to have been made: FOI Act, section 53(2)(b) and section 34(2)(e). A person need not apply for an internal review in relation to a determination that has been made by the principal officer of an agency: FOI Act, section 34(3)(b). Mr Cianfrano’s submission to the Tribunal was that because the Director General, as the principal officer of the agency, made the deemed decision to refuse access to the documents, there was no need for an internal review. The Tribunal rejected that submission.

4 Mr Cianfrano’s ground of appeal was that the Tribunal ignored his evidence that the Director General was the person who is deemed to have made the decision. He relied on a letter dated 31 October 2006 from the Director of the Sydney Records Centre to the Director General of the Attorney General’s Department transferring part of his FOI application to that Department. He also relied on a letter of 3 November 2006 acknowledging receipt of his application. That letter began with the words, “The Director General has asked me to acknowledge receipt of your application...”.

Appeal Panel’s reasoning and conclusion

5 The issue of who makes a “deemed” decision is not a question of fact to be determined on the basis of evidence. Rather, it is a question of law to be determined according to the meaning of the relevant provisions in the FOI Act. A “deemed” decision is not a decision that is actually made by a particular person. It is a decision that comes about by operation of law. Consequently any evidence Mr Cianfrano may have had about who was deemed to have made the decision was irrelevant and the Tribunal was right to ignore it.

6 The entity that is deemed to have made the relevant decision is the “agency”. Section 24 states that:

An agency that fails to determine an application within 21 days after the application is received by the agency shall, for the purposes of section 34 and other provisions of this Act, be taken to have determined the application by refusing access to the document to which it relates.
7 “Agency” is defined as the Government Department, not the principal officer (the head) of that Department: FOI Act , section 6. The Tribunal correctly interpreted and applied the relevant legislative provisions and we affirm its decision to dismiss Mr Cianfrano’s application for want of jurisdiction.

Grounds for costs appeal

8 The general rule in the Tribunal is that each party pays his or her own costs. There is an exception if the Tribunal is satisfied that there are special circumstances warranting an award of costs. Section 88(1) of the ADT Act states that:

(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 Practice Note 12 sets out some examples of the kinds of conduct that may constitute special circumstances including whether a party has vexatiously conducted the proceedings and whether a party has made a claim that has no tenable basis in fact or law. The Department applied for costs but the Tribunal declined that application. The Department submitted that the Tribunal had erred by:
a) incorrectly applying an Appeal Panel decision to a first instance matter,

b) alternatively, if that case is applicable, failing to apply it,

c) taking into account irrelevant considerations, and

d) failing to take into account relevant considerations.

10 The Tribunal referred to the decision of Saggers v Director General, Attorney General’s Department [2006] NSWADTAP 11 at [38]. That decision related to an application by the Attorney General’s Department for costs in an appeal lodged by Mr Saggers. The Tribunal quoted the following passage:
Although Mr Saggers has been unsuccessful in this appeal, it cannot be said that the appeal had no real prospect of success. Nor do any of the circumstances described by the Attorney General’s Department, either alone or in combination, amount to "special circumstances warranting an award of costs." We agree that Mr Saggers and Mr Cianfrano are familiar with the ADT’s FOI jurisdiction. However, they are not lawyers and cannot be expected to articulate grounds of appeal in a way which a lawyer could. They have not made claims which have no tenable basis, nor have they put the Attorney General’s Department to unnecessary expense. Apart from the ground of appeal based on Government policy, which was a very minor aspect of the appeal, Mr Saggers has done his best to put forward arguable grounds of appeal. The mere expression of intention on the part of the Attorney General’s Department to apply for a costs order does not mean that such an order should be made in circumstances where Mr Saggers’ appeal was unsuccessful.
11 The Department submitted that although the Tribunal purported to apply this decision, it was not relevant to first instance decisions. The Department said that the Appeal Panel was talking about the difficulty unrepresented parties may have articulating grounds of appeal. According to the Department, that difficulty is not relevant to first instance decisions because parties do not have to identify questions of law.

12 The Department also submitted that the Tribunal misapplied the decision in Saggers for another reason. The Tribunal purported to follow that decision, yet it declined to award costs even though two of the three considerations to which it had regard were against Mr Cianfrano. The Tribunal set out its conclusions at [44]:

In this matter, I agree that Mr Cianfrano’s application was without merit and that the Department has been put to expense that might have been avoided. However, I agree with the views expressed by the Appeal Panel in Saggers quoted above. In my view it is significant that Mr Cianfrano is a self-represented non-lawyer. I note that in the matter of Marrickville Commercial College Ltd v NSW Vocational Education and Training Accreditation Board both parties were legally represented. There is no doubt that Mr Cianfrano is familiar with the Tribunal’s FOI jurisdiction. However, he cannot be expected to conduct his application in the same manner as a legally trained representative.
13 According to the Department, if the fact that a person is not legally represented can trump every other consideration, costs will never be awarded against an unrepresented person.

14 A further consideration, which the Department said that the Tribunal took into account but that was not relevant, was an implication that it had intimidated or threatened Mr Cianfrano. The Department had written to Mr Cianfrano several times raising the issue of jurisdiction and inviting him to withdraw his application. At [40] of the decision, the Tribunal said that:

In the case of self-represented litigants care must be taken to ensure that these attempts are not misconstrued as intimidation or threats designed to discourage individuals with legitimate claims. In my view the engagement of a solicitor to appear on behalf of an agency at the planning meeting stage has the potential to appear threatening to a self-represented litigant unfamiliar with the proceedings of the Tribunal. This potential is more likely to be realised if the agency then attempts to bring the Calderbank principle into play. I note that I do not consider that to have been the case in this matter.
15 Despite the fact that the Tribunal Member said that he did not consider that the Department had intimidated or threatened Mr Cianfrano, the Department said that the fact that this paragraph was included in the decision when there was no evidence or submissions in relation to it, constituted an error on the Tribunal’s part. Similarly, the Department said that the Tribunal erred at [41] when it concluded that Mr Cianfrano had not acted in a vexatious or malicious way when there was no evidence or submissions on that point.

16 Finally, the Department submitted that the Tribunal had failed to take into account a relevant consideration identified by the Tribunal in Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99:

39 If a citizen continues to press an application in circumstances where it is reasonable to conclude that the applicant had enough understanding of the Act as to be likely to appreciate that the application was an empty one, then some sanction should be administered by the Tribunal.
17 The Department brought this decision to the Tribunal’s attention but says that the Tribunal did not apply it.

Appeal Panel’s reasoning and conclusion

18 The discretion to award costs is to be exercised “judicially”, that is, “not arbitrarily, capriciously or so as to frustrate the legislative intent”: Oshlack v Richmond River Council (1998) 193 CLR 72 at 81[22]. In this case if there are special circumstances warranting an award of costs, the discretion is unconfined except by the subject matter, scope and purpose of the provision: Water Conservation and Irrigation Commission (NSW) v Browning (1974) 74 CLR 492 at 505 per Dixon J. Finally, it should be exercised “consistently with the scheme and purpose of the section as a whole”: R vIngrassia (1997) 41 NSWLR 447 at 449 per Gleeson CJ (McInerney and Ireland JJ agreeing).

19 It is a fundamental principle of law that in exercising discretionary power, a decision maker must take into account relevant considerations and must not take into account irrelevant considerations. However the Tribunal will only have made an error of law if it failed to take into consideration a matter which it is bound to take into account or takes into consideration a matter which it is bound not to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 C L R 25 per Mason J page 39. In the context of exercising discretion under section 88 of the ADT Act, no considerations are listed and none can be regarded as mandatory based on the subject matter, scope and purpose of that Act. The Tribunal must be satisfied that there are special circumstances and that those circumstances warrant an award of costs. The Tribunal’s Practice Note No 12 is merely a guide to the kinds of conduct, which may be considered to constitute special circumstances.

20 Whether or not the other party is legally represented is a relevant consideration in relation to an application for costs, regardless of whether the application is made at first instance or before the Appeal Panel. Lack of legal knowledge and skills may mean that an unrepresented person behaves in a way, which a person with such knowledge and skills would not behave. Whether such conduct amounts to “special circumstances” may depend, to some extent, on the level of legal knowledge and skills of the person concerned. The weight to be given to that consideration will vary depending on the circumstances of the case but it cannot be said that it is wholly irrelevant to first instance decisions. Many decisions at that level, particularly those concerning jurisdiction, involve complex questions of statutory interpretation that are often difficult for unrepresented litigants to understand. If follows that we do not agree that the Tribunal made an error of law by taking into account each of the considerations set out in the decision in Saggers.

21 The fact that the Tribunal found that Mr Cianfrano’s application had no merit and that the Department has been put to expense that might have been avoided does not mean that the Tribunal necessarily had to award costs. The Tribunal also took into account another relevant consideration, namely the level of Mr Cianfrano’s legal knowledge and skills and the fact that he was not legally represented. The weight that the Tribunal gives to each consideration does not raise a question of law. Contrary to the Department’s submission the Tribunal’s conclusion does not necessarily mean that an unrepresented person will never be ordered to pay costs. The Tribunal must weigh all the relevant factors before deciding whether special circumstances exist.

22 The Department is understandably concerned by the Tribunal reference to the potential for threats and intimidation even though no such finding was made against the Department. While it is unfortunate that the Tribunal raised this issue when there was no need to do so, that does not constitute an error of law. The Tribunal specifically said that it did not consider that the Department’s conduct had been intimidating or threatening. We find that the Tribunal did not take that matter into account.

23 Although the Department did not submit that Mr Cianfrano had acted in a vexatious or malicious way, the Tribunal was entitled to make a finding as to whether that was the case. It was a relevant consideration in determining whether costs should be awarded and is specifically mentioned in the Tribunal’s Practice Note 12 on costs.

24 The Department submitted that the Tribunal did not take into account the fact that Mr Cianfrano had continued to press his application in circumstances where it is reasonable to conclude that he had enough understanding of the Act as to be likely to appreciate that the application was an empty one: Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99. On the contrary, the Tribunal did take into account Mr Cianfrano’s level of understanding of the Act. It said at [44] that there was no doubt that Mr Cianfrano was familiar with the Tribunal’s FOI jurisdiction.

25 In summary, the Tribunal will only have made an error of law if it failed to take into account considerations that it was bound to take into account or took into account considerations that it was bound not to take into account. Since there are no considerations of that kind in relation to the exercise of the discretion to award costs, the Tribunal did not make an error of law. Furthermore, in our view, the Tribunal only took into account relevant considerations. While the Attorney General’s Department may well have been surprised by the decision that the Tribunal reached given the circumstances, the discretion did not miscarry.

26 For these reasons, the Department has not established that the Tribunal made an error of law in exercising its discretion not to award costs. In Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456, the Court of Appeal held that an Appeal Panel may grant leave for an appeal to extend to the merits without having first decided that an error of law exists or may exist in the decision under appeal. Nevertheless, we understand the Department’s application to extend the appeal to the merits of the Tribunal’s decision to be dependent on us first identifying such an error. As no error has been identified, leave to extend the appeal to the merits of the Tribunal’s decision is refused. The Tribunal’s decision on costs is affirmed.

Orders

1. The Tribunal’s decision to dismiss the application for want of jurisdiction is affirmed.

2. Leave to appeal against the merits of the Tribunal’s decision in relation to costs is refused.

3. The Tribunal’s decision that each party bears his or her own costs is affirmed.