Saggers v Director General, Attorney General's Department (GD)

[2006] NSWADTAP 11

Appeal Panel - Internal

CITATION:	Saggers v Director General, Attorney General's Department (GD) [2006] NSWADTAP 11
PARTIES:	APPELLANT Colin Saggers RESPONDENT Director General, Attorney General's Department
FILE NUMBER:	059064
HEARING DATES:	13/12/05
SUBMISSIONS CLOSED:	12/13/2005
DATE OF DECISION:	03/28/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Blake C - Non Judicial Member
CATCHWORDS:	fail to apply principle correctly to the facts - finding contrary to evidence - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053060
DATE OF DECISION UNDER APPEAL:	08/16/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Sydney Market Authority (Dissolution) Act 1997
CASES CITED:	Attorney General of the Northern Territory v Kearney (1985) 158 CLR 500 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 Cianfrano v New South Wales State Rail Authority [2004] NSWADT 223 Cianfrano v New South Wales Treasury Appeal Panel (Hennessy DP, Prof C Blake, Mr S Montgomery) No 059006, 26 April 2005 Esso Australia Resources Ltd v Commissioner of Taxation (1992) 201 CLR 49 Kioa v West (1985) 159 CLR 550 Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
REPRESENTATION:	APPELLANT R Cianfrano, agent RESPONDENT M Allars, counsel
ORDERS:	Appeal dismissed; No order as to costs.

Introduction

1 Mr Saggers has appealed to the Appeal Panel from a decision of the President of the Tribunal, Judge O’Connor. The President affirmed the decision of the Attorney General’s Department not to give Mr Saggers access to certain documents he had requested under the Freedom of Information Act 1989 (FOI Act). Those documents relate to the sale of the Sydney Markets to Sydney Markets Ltd in 2002. The main exemption on which the Attorney General’s Department relied in refusing access to certain documents, was that the documents were subject to legal professional privilege.

2 Mr Saggers and his agent in these proceedings, Mr Cianfrano, are concerned about aspects of the Government’s sale of the Sydney Markets. They allege that the Government sold the Sydney Markets for a sum well below the true value of the site. According to Mr Saggers, after Sydney Markets Ltd brought proceedings against the Government claiming $28 million in compensation, the Government settled that matter out of court. They say that the Government then sold the Flemington Markets to Sydney Markets Ltd for a greatly discounted price which took into account the $28 million Sydney Markets Ltd had claimed. In pursuit of evidence to support these allegations, Messrs Saggers and Cianfrano have made numerous applications under the FOI Act. They said that despite those applications, certain documentation which should have been in existence pursuant to the Sydney Market Authority (Dissolution) Act 1997 (the Dissolution Act), have never been provided. On that basis, they say that the sale was unlawful.

3 The significance of an allegation that the sale was unlawful is that in Attorney General of the Northern Territory v Kearney (1985) 158 CLR 500 the High Court recognised that there are exceptions to the application of the doctrine of legal professional privilege. President O’Connor quoted the relevant passage in his decision at [33] and [34]:

33 . . . Gibbs CJ stated at 515:

‘ It would be contrary to the public interest which the privilege is designed to secure – the better administration of justice – to allow it to be used to protect communications made to further a deliberate abuse of statutory power and by that abuse to prevent others from exercising their rights under the law. It would shake public confidence in the law if there was reasonable ground for believing that a regulation had been enacted for an unauthorised purpose and with the intent of frustrating a legitimate claim, and yet the law protected from disclosure the communications made to seek and give advice in carrying out that purpose.’

34 Mason and Brennan JJ agreed. Wilson J observed at 525 that the ‘distinction between a deliberate and mistaken misuse of power is to my mind of crucial significance.’ He noted at 525 that in deciding whether the privilege is lost: ‘The test goes to the professional quality of the relationship. That quality depends on the good faith, the integrity that the client brings to the consultation, not upon the correctness or otherwise of the advice that may be given.’ Dawson J dissented.

4 In brief, Mr Saggers submitted to the Tribunal that there had been breaches of the Dissolution Act in this case. In his view, those breaches were sufficient to nullify the exception that would otherwise be available for communications on the ground of legal professional privilege. The Tribunal explained Mr Saggers’ submission at [35]:

Mr Saggers’ contention is that here unlawful conduct occurred, amounting to abuse of public office or furtherance of an illegal purpose. He referred to the terms of the Dissolution Act . He noted that the Act empowered the Minister to sell the Sydney Markets. He claimed that the sale process was unlawful as, despite his best efforts and his and Mr Cianfrano’s many applications, they had not been able to find the instrument required by s 5(3) of the Act, the Minister’s order in writing directing the transfer of the assets and business undertaking to SML; nor the order excluding items from the sale (s 8).

5 The Tribunal decided that the documents in dispute were all exempt because they are subject to legal professional privilege. Clause 10 of Schedule 1 to the FOI Act states that:

10 Documents subject to legal professional privilege

(1) A document is an exempt document if it contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document by virtue of this clause merely because it contains matter that appears in an agency’s policy document.

6 The Tribunal made the following findings:

(a) the State Government, rather than a particular department or agency, was the client of the Crown Solicitor’s Office (CSO) in relation to the sale of the Sydney Markets; (at [25])

(b) the CSO was involved in a solicitor-client relationship with the State Government; (at [26])

(c) there is an exception to the protection afforded by the exemption for documents subject to legal professional privilege where the communication is in furtherance of an illegal purpose, directed to frustrating the processes of the law or an abuse of public office; (at [30])

(d) even if Mr Saggers is right and some of the requirements in the Dissolution Act, have not been complied with, the Tribunal was “not satisfied that this kind of omission involves the kind of egregious misconduct to which the limitation allowing for the removal of the protection of legal professional privilege is directed. The malfeasance or misconduct must be of a gross kind, not one that may be no more than an administrative oversight in the course of a process which the Act clearly entitled the Government to undertake.” (at [36])

(e) “The case law does not stand for the proposition, asserted by Mr Cianfrano, that a failure to remain within the boundaries of statutory power (mere ultra vires, or ‘narrow’ ultra vires as counsel for the Department called it) is enough to give rise to the loss of legal professional privilege. Much more is required.” (at [36])

7 Under s 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) an appeal may be made on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. Mr Saggers appealed both on questions of law and on the merits. We deal first with the questions of law and then address the question as to whether the Appeal Panel should give leave to extend the appeal to the merits of the Tribunal’s decision.

Grounds of Appeal

8 Although Mr Saggers provided written submissions in support of his appeal, at the hearing he summarised his grounds of appeal on questions of law as falling into three categories:

a) the Tribunal made a finding of fact that non- compliance with the Dissolution Act involved “mere ultra vires ” when there was no evidence to support that finding and in fact, the non-compliance was not a mere oversight by the Minister;

b) the Tribunal breached the rules of procedural fairness by denying him the opportunity to participate in a second case conference at least three days prior to the hearing;

c) the Tribunal breached the rules of procedural fairness by not giving him an adequate opportunity to respond to the Attorney General’s Department’s submission that the Government’s conduct in relation to the of the sale involved narrow ultra vires.

9 Despite this characterisation of the appeal, it is clear from Mr Saggers’ written submissions that he also appealed on the following grounds:

d) that the Tribunal made an error of law in relation to its understanding of the principle of ultra vires ;

(e) that there was no solicitor/client relationship between the CSO and the State Government;

(f) that the Tribunal erred by not applying Government policy in relation to disclosure of Government contract information.

10 We deal with each of these grounds below.

Finding of fact when there was no evidence for that finding

11 The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. It stands for the proposition that there is no error of law in making a finding of fact for which there was some evidence, even though the finding was “perverse” or contrary to the overwhelming weight of evidence (See Glass JA with whom Samuels JA agreed, at 155-156.)

12 One difficulty with Mr Saggers’ submission is that the Tribunal did not make the finding of fact that Mr Saggers said it did. At [37], the Tribunal said,

In making these observations the Tribunal reiterates that no finding is made in this case along the lines asserted by Mr Saggers and Mr Cianfrano as to the alleged failure of the relevant Minister to make orders in writing in respect of the transfer of the business of Sydney Markets Authority.

13 The Tribunal made a finding based on an assumption that the Minister had not complied with the Dissolution Act. That assumption was not a finding of fact. At [36] of reasons, the Tribunal said:

If Mr Saggers is right and no such instrument has been created, the Tribunal is not satisfied that this kind of omission involves the kind of egregious misconduct to which the limitation allowing for the removal of the protection of legal professional privilege is directed.

14 The second difficulty with Mr Saggers’ submission is that there was no direct evidence that any of the statutory requirements in the Dissolution Act had not been met. Mr Saggers said that despite numerous applications under the FOI Act, no documents had been produced which demonstrated compliance with the provisions of s 5(3) or s 8(1)(a) of the Dissolution Act. That assertion is insufficient to prove that there has been a breach of the Dissolution Act. Contrary to Mr Saggers’ submission, the Attorney General’s Department did not admit that the Government had acted unlawfully by not complying with the Dissolution Act. While Mr Saggers had intended to tender evidence of improper conduct, he ultimately decided not to press the tender of that material. (That matter is the subject of the second ground of appeal.) It follows from our reasoning that this ground of appeal has not been made out.

15 Because it is a related ground of appeal, we also deal here with Mr Saggers’ contention that the Tribunal made an error of law in relation to its understanding of the principle of ultra vires. We understand this submission to be that contrary to the Tribunal’s finding, if the provisions of the Dissolution Act were not complied with, then that would constitute the kind of conduct referred to in Kearney’s case. The Tribunal did not make an error in its statement of principle or in its application of principle to the hypothetical scenario that the Government had not complied with the terms of the Dissolution Act. The High Court decided that it would be contrary to the public interest to allow legal professional privilege to be used to protect communications made to further a deliberate abuse of statutory power. We agree with the Tribunal that even if Mr Saggers’ assertions were correct, there was no basis for any inference that there had been a deliberate abuse of statutory power.

Denial of procedural fairness – participation in second case conference

16 The basis of this ground of appeal was that Mr Saggers wanted to have a case conference to discuss the merits of tendering documents and calling witnesses in support of his allegations that there had been serious misconduct on the Government’s part in relation to the sale of the Flemington Markets. The directions that were made at a case conference 5 April 2005 included a direction setting the matter down for hearing on 18 July 2005 and a direction giving:

Liberty to parties to re-list the matter for a case conference on 3 days’ notice.

17 On 30 June, and possibly before that, Mr Cianfrano wrote to the Tribunal asking for the matter to be re-listed for a case conference. The Tribunal sent a facsimile to Mr Cianfrano on 7 July inquiring as to the reason for requesting a case conference. By letter of 8 July 2005 Mr Cianfrano said that a case conference was to “present any of (sic) documents establishing witnesses etc”. On 13 July 2005 the Tribunal made a direction to the following effect:

Note that the Tribunal will consider at the commencement of the hearing on Monday 18 July 2005, the application by Mr Robert Cianfrano dated 8 July 2005 to adjourn and hold a case conference before proceeding further.

18 The transcript of the hearing discloses that Mr Saggers requested a case conference at the beginning of the hearing on 18 July 2005. Mr Saggers explained that:

. . . unfortunately despite our request for a case conference it never came to fruition and so I think at the last planning meeting it was agreed that perhaps an informal case conference could be held preliminary to the actual proceeding so that the issue that would be raised which may be contentious to the other side could be raised before you and could be given a ruling rather than treat it as part of the actual case itself and therefore could be inadmissible. So informally I felt would be a better way to raise those issues and I had hoped to have them before you before we turned up here today but unfortunately that just didn’t eventuate. (Transcript at p 4.)

19 President O’Connor ultimately responded at page 10, by saying that:

You did put the letter into the registry at a reasonable time. The respondent wasn’t notified of the letter. When I eventually learned of the letter I put it off til today. If you want to have a case conference we can stop for half an hour and have it that’s in the interests of progress, I’m hoping it is. On that basis I’m not ill disposed to stopping for half an hour and having a conference as one way of dealing with this, Ms Allars, and see where we go from there.

20 Upon resumption of the hearing, President O’Connor said at p 12 of the transcript:

I’ll just note that we’ve resumed the hearing. We’ve had a planning meeting/case conference by staying in the room for the last hour and it’s led to the following arrangement . . . .It’s acceptable for Mr Saggers to refer to the Sydney Markets (Dissolution) Act. It’s not acceptable that there be any further reference to the heads of agreement and the correspondence between Mr Saggers and State Records. If at the end of the day he still is pressing for that material to be taken into account, we’ll have to consider our position at that stage.

21 In the Tribunal’s reasons for decision at [15] – [18] President O’Connor explained what had happened at the hearing:

15 At hearing Mr Saggers sought to introduce further material, which he described as evidence – a thick document entitled Heads of Agreement (between the Government and SML) and a bundle of documents comprising memorandums, notes and other official documents. The Tribunal’s understanding is that this material had been acquired through other FOI applications.

16 Mr Saggers saw it as relevant to his present case in that this material tended to support a claim of abuse of public office, which, if established, would bear on whether the claim to legal professional privilege could be sustained and would be relevant to the discretionary considerations found in the other exemptions relied upon.

17 Granting an application by Mr Saggers, the Tribunal adjourned the hearing to allow for an off-transcript discussion of his application in a planning meeting (a case conference process). The result was that Mr Saggers did not press his application for consideration of this additional material. The hearing then resumed.

18 There was no objection by the Department to Mr Saggers making submissions going to his abuse of public office point, based upon the terms of the Sydney Market Authority (Dissolution) Act 1997 (Dissolution Act) and he did so in the course of the proceedings.

22 Towards the end of the hearing (page 35 of the transcript) President O’Connor said, “At this stage, Mr Saggers, I must say I’m not keen to have any more evidence put on. I’ve got the basic picture as to what your concerns are and all I can really do is try to reflect it in the decision.”

23 Although Mr Saggers disputes this version of events, his characterisation of them is very similar to the Presidents’. He says that what happened was that he decided not to present evidence that would have supported his claim that there was egregious misconduct by the Government. According to Mr Saggers, there were two reasons for that decision. Firstly, the agency said that it would make an application for an adjournment and for costs if the material were tendered because they would need time to consider the material and file any further material in reply. Mr Saggers said that although the evidence was discussed with the Tribunal Member in a case conference, the Member did not examine it, but instead indicated that it would not be admissible. While not making any findings as to what happened in the course of the case conference, we accept that these were the reasons in Mr Saggers’ mind, for not pressing the tender of the material.

24 We do not agree with Mr Saggers’ submission that the Tribunal breached the rules of procedural fairness by denying him the opportunity to participate in a second case conference prior to the hearing. It is correct that Mr Saggers requested a case conference prior to the hearing and that the Tribunal did not accede to that request. However, The Tribunal agreed to adjourn the hearing for the purpose of conducting a case conference. Mr Saggers was not denied a reasonable opportunity to be heard. The Tribunal gave him ample opportunity to put his case both formally at the hearing and informally in the course of the case conference.

25 Another way in which it may be said that the Tribunal erred was by not complying with the obligations in s 73(4) of the ADT Act. That provision gives the Tribunal certain responsibilities towards parties:

The Tribunal is to take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

26 We are not satisfied that the Tribunal breached these obligations in this case. It was Mr Saggers who requested a case conference. Mr Saggers says that one of the reasons he did not press his application to tender the material, was as a result of the indication that the Tribunal had given him in the case conference. If the Tribunal indicated in the case conference, that the evidence that was sought to be tendered was not relevant, then Mr Saggers has effectively been deprived of the opportunity to appeal against that decision. While that scenario does not disclose any error of law on the Tribunal’s part, if it occurred, it is not a practice which we think should be encouraged.

Denial of procedural fairness - inadequate opportunity to respond to the Attorney General’s Department submission

27 In a submission headed “Further Submissions in response” which was filed on the day of the hearing, Messrs Saggers and Cianfrano first raised the allegation that a breach of the Dissolution Act had occurred and that the principle in Kearney’s case means that the disputed documents should be released. Although this was a late submission, the Attorney General’s Department was content to deal with it at the hearing. In responding to the submission, Ms Allars first dealt with the exception to the exemption for legal professional privilege as set down in Kearney’s case. She went on to refer to the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. We set below the relevant extract from the transcript at page 37:

Ms Allars: In the present case, the only way in which the argument is being put about the application of this exception in Kearney’s case is by reference to the Sydney Markets Authority (Dissolution) Act 1997 and although it hasn’t been put very precisely it appears that the concern is with a failure to comply with section 5(3) which provides for the Minister by order in writing to direct as a kind of consequential action, that various assets of the business undertaking of Sydney Market Authority be transferred as part of the completion of the sale. It seems as though there’s some reference as well as part of the argument, to section 8(2) which also provides for the Minister by order in writing to direct some assets be excluded from the sale.

If there were any failure to comply with either or both of those provisions, it would be a question of asking whether the failure to follow the procedure results in invalidity of the transaction in part or in whole, and that is a Project Blue Sky kind of issue. It’s an issue of whether as a matter of construction of this Act as a whole, failure to follow the procedure results in an invalid decision, and in Project Blue Sky, to which Mr Cianfrano made reference at one point, in that case the old language of mandatory and directory was rejected by the High Court and it was said that one must construe the Act as a whole. When one construes the Act as a whole, it’s quite apparent that it proceeds on the basis that a transaction sale will occur and it’s quite apparent that any orders that are made of this kind are of a minor and consequential nature. (Page 37 of the transcript.)

28 Mr Saggers says that he was taken by surprise by Ms Allars’ reference to the decision of Project Blue Sky. In fact, Mr Saggers had referred to this case himself at page 3 of a submission to the Tribunal filed on the day of the hearing and entitled “Applicant’s Submission and legal argument”. (Exhibit A1) In any case, the hearing rule of procedural fairness merely requires that a decision maker hear a person before making a decision affecting their interests. (Kioa v West (1985) 159 CLR 550.) Mr Saggers could have replied to Ms Allars’ submission relating to Project Blue Sky at the hearing. His unfamiliarity with her argument does not mean that the Tribunal is required to adjourn the hearing in order for him to formulate a response to submissions that were in reply to his own submission.

No solicitor/client relationship between the CSO and the State Government

29 To establish that the exemption for documents subject to legal professional privilege applies, the CSO must have been consulted in a professional capacity in relation to a professional matter and the communication between the CSO and the relevant Departments must have been made in confidence and arise from the relationship of lawyer and client: Esso Australia Resources Ltd v Commissioner of Taxation (1992) 201 CLR 49. The Tribunal found at [26] that the CSO was involved in a solicitor-client relationship with the State Government. Mr Saggers says that this finding involves legal error because the CSO acted as a “secretary” and did not receive instructions to give legal advice. Mr Saggers relies on Memorandum No 95-39 which sets out the Premier’s policy as to when agencies should seek legal services from the CSO rather than from private practitioners. That Memorandum has no bearing on the question of whether any particular communication between an agency and a solicitor in the CSO is privileged.

Failure to apply Government policy

30 Another of Mr Saggers’ grounds of appeal was that Government policy on the disclosure of Government contract information requires that the documents sought be disclosed and that this requirement is supported by s 64 of the ADT Act. We agree with Ms Allars’ submission that a general Government policy of disclosure of contract material does not limit the availability of legal professional privilege, either at common law or for the purpose of the exemption in Cl 10 to Schedule 1 of the FOI Act.

Extension to the merits

31 The Appeal Panel may give leave to extend the appeal to the merits of the Tribunal’s decision. We should do so if there is sufficient reason to justify leave being given. Mr Saggers did not articulate the basis on which he sought leave. One such basis may be that an error of law has been made out. That is not the situation in this case. Another basis may be that allowing the Tribunal’s decision to stand involves some manifest injustice. We are not persuaded that this is the case.

32 It is clear that Mr Saggers decided not to tender certain evidence at the hearing. According to Mr Saggers that was because of a foreshadowed application by the Attorney General’s Department for an adjournment and for costs as well as because President O’Connor indicated that such evidence would not have been admitted. The fact that Mr Saggers made that decision is not a sufficient reason, in our view, to give leave to extend the appeal to the merits of the Tribunal’s decision. Even if the decision was ill-advised, it was a decision of Mr Saggers’ not the Tribunal.

33 One of Mr Saggars' grounds of appeal amounts to an appeal on a question of fact. That question was whether the CSO was involved in a solicitor/client relationship with the Crown. The Tribunal made a finding on the evidence before it that the CSO was involved in a solicitor/client relationship. That finding was a finding of fact. Mr Saggers did not provide any reasons for the Appeal Panel to grant leave so that that finding could be re-examined. In those circumstances we decline to give leave to appeal against the merits of the Tribunal’s decision on this point or any other.

Application for costs

34 The Attorney General’s Department applied for costs. The Appeal Panel has jurisdiction to award costs under s 88(1) of the ADT Act “but only if it is satisfied that there are special circumstances warranting an award of costs.” The Tribunal’s Practice Note No 12 on Costs sets out some guidelines as to the kinds of circumstances that may come within s 88. The Attorney General’s Department highlighted certain provisions of this Practice Note, including the situation where a party is disadvantaged by making a claim that has no tenable basis in fact or law and by lodging an appeal where the Appeal Panel considers the appeal was without any real prospect of success. The Attorney General’s Department relied on another decision of President O’Connor, this time a first instance decision, Miriani v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 99. In that case, which was an application for a review of a decision made under the FOI Act, President O’Connor made a costs order fixed in the sum of $1000. The reason for the order was that the applicant had made an untenable claim and continued to press it in circumstances where there was no issue to be determined because the agency had released all the documents she had requested. President O’Connor observed at [39] that:

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. In the Tribunal’s opinion, this applicant has engaged in distorted logic in an attempt to demonstrate that the REVS system, in particular, is some kind of repository of ‘personal affairs’ information or, more broadly, ‘personal information’. The proposition is, in the Tribunal’s view, simply unsustainable; and the Tribunal believes that the applicant is of sufficient sophistication to appreciate that.

40 In these circumstances there should be an order for costs.

35 The present case is distinguishable from the facts in Miriani. This was not a case where the agency had provided all the relevant documents and the applicant nevertheless pressed his case. In the present case, the Attorney General’s Department refused to provide certain documents on the ground that they were covered by legal professional privilege. Mr Saggers disagreed with the Tribunal’s finding that the principle in Kearney’s case did not apply to the facts of this case. That was a finding that was a legitimate subject of appeal.

36 This Tribunal has previously made a costs order against Mr Cianfrano, Mr Saggers’ agent in these proceedings. (Cianfrano v New South Wales State Rail Authority [2004] NSWADT 223.) The basis for that order was that Mr Cianfrano intended to withdraw his application but rather than doing so prior to the hearing, put the agency to the expense of attending the hearing and then withdraw his application. He said that he did so because he objected to the “intimidating letters” the agency’s solicitor had written.

37 Ms Allars also drew the Appeal Panel’s attention to another decision involving Mr Cianfrano, Cianfrano v New South Wales Treasury Appeal Panel (Hennessy DP, Prof C Blake, Mr S Montgomery) No 059006, 26 April 2005, where the Appeal Panel dismissed an appeal in an ex tempore decision. The appeal was partly based on a contention about the applicability of Government policy under s 64 of the ADT Act. That submission was identical to that described in [31] above.

38 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.

Orders

Appeal dismissed

No order as to costs.