Cianfrano v Director General, NSW Department of Commerce [2007] NSWCA 113 | Case summary

Identification of decision under appeal 1 Mr Cianfrano appealed against a decision of the Tribunal handed down on 1 May 2007: Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 99. The decision made findings that certain documents, or parts of documents, for which Mr Cianfrano had applied under the Freedom of Information Act 1989 (FOI Act), were exempt. The Tribunal did not determine in that decision the so-called override or residual discretion question. That question is whether, despite being covered by certain exemptions, the documents should nevertheless be released in the public interest. On 3 October 2007, after receiving further written submissions on that question, the Tribunal made its final decision upholding the exemptions and not exercising the discretion to give access to the exempt documents: Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 233. Mr Cianfrano did not appeal against that decision. 2 In the current matter Mr Cianfrano appealed on several questions of law and requested leave for the appeal to be extended to the merits of the Tribunal's decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2). The appeal was heard on 5 December 2007. Mr Cianfrano participated by phone. At the beginning of the hearing we pointed out that even if he was successful in his appeal against the May decision, the October decision would stand. Rather than hear an appeal which may have no utility, the Appeal Panel allowed Mr Cianfrano to verbally lodge an appeal against the October decision out of time on the condition that he lodge the appeal in the proper form within seven days. Although the general rule is that an appeal should be lodged in the prescribed form, we dispensed with that requirement: ADT Act s 113(4); ADT Rules (Transitional) Regulation 1998, Schedule 1, clause 4 and clause 39. The Department did not object and Mr Cianfrano completed the paper work and filed the appeal on 10 December 2007. We reminded Mr Cianfrano that this was a special circumstance and that the same latitude would not necessarily be extended in other matters. Tribunal's decision 3 Mr Cianfrano's application to the Department under the FOI Act requested: "Access to documents relating and pertaining to the NSW Department of Commerce and or the Attorney General's Department and or the Crown Solicitor's Office, into the costs incurred to all FOI applications and ADT appeals made by Robert Cianfrano." 4 The Department identified 12 documents that fell within scope of this application. Ten of those documents were tax invoices from the Crown Solicitor's Office (CSO) to the Department and two, on the same document, were emails relating to costs or the recovery of costs. Following Mr Cianfrano's application to the Tribunal for external review of the Department's decision, a further tax invoice was identified. Full access was given to three documents and partial access was given to a further eight documents. The information that was deleted from the tax invoices was information relating to the hourly rates charged by the CSO, or information from which those rates could be deduced. This information was claimed to be exempt under Clause 7(1)(c) of Sch. 1 to the FOI Act. That provision states that: (1) A document is an exempt document: (c) if it contains matter the disclosure of which: (i) would disclose information (other than trade secrets, commercial-in-confidence provisions or information referred to in paragraph (b)) concerning the business, professional, commercial or financial affairs of any agency or any other person, and (ii) could reasonably be expected to have an unreasonable adverse effect on those affairs or to prejudice the future supply of such information to the Government or to an agency. 5 The document containing the two emails (Document L) was claimed to be exempt under Clause 10 of Schedule 1 to the FOI Act relating to legal professional privilege. That provision states that: (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. 6 In the May decision, the Tribunal decided that: 1. The search for the documents undertaken by the Department was sufficient. 2. Material on nine tax invoices which contained information in relation to the hourly rates charged by CSO could be deleted and access given to the remainder of the documents. 3. Document L is exempt pursuant to Clause 10 of Sch 1 to the FOI Act. 7 In the October decision, the Tribunal decided not to exercise the override discretion and made orders in accordance with the findings in the May decision. Grounds of Appeal 8 Before going through each ground of appeal we will address two matters which Mr Cianfrano raised at the hearing. The first was a reference to the role of the CSO as described in the Legal Profession Act 2004 and the second was a reference to disclosure of hourly rates to costs assessors in the Supreme Court. Neither of those matters was raised in evidence or submissions before the Tribunal. 9 In relation to the disclosure of the hourly rates in the tax invoices, Mr Cianfrano's submission appeared to be that the CSO is not operating in a competitive environment so disclosure of that information could not reasonably be expected to have an unreasonable adverse effect on its business affairs: clause 7(1)(c). In support of that submission he quoted several provisions of the Legal Profession Act 2004 as well as the Premier's Memorandum No 95-39 issued on 12 October 1995. The Memorandum states that in certain defined circumstances the CSO (as opposed to some other Australian lawyer) must act for the State of NSW. Section 110 of the Legal Profession Act 2004 provides that the CSO "may" act as solicitor for the State of New South Wales. The use of the word "may" makes it clear that the CSO is not the sole legal representative for the State of NSW. Consequently, Mr Cianfrano's premise, that the CSO has a monopoly on providing legal advice to the State of New South Wales, is incorrect. 10 Secondly, Mr Cianfrano submitted that the CSO discloses its hourly rates when participating in costs assessments in the Supreme Court. He said that means that those rates are on the public record and legal professional privilege is waived. Since business affairs, not legal professional privilege, was the basis for the exemption in relation to the tax invoices, waiver is not relevant. In addition, there was no evidence before the Tribunal as to what occurs in a costs assessment in the Supreme Court involving the CSO. We now turn to the grounds of appeal identified in Mr Cianfrano's written submissions. 11 Ground 1 - decision in Neary wrong in law. In Neary v State Rail Authority [1999] NSWADT 107 at [40] and [41], O'Connor P decided that the hourly rates charged to a particular agency by the CSO were exempt from disclosure under the business affairs exemption because they may provide an advantage to third parties when negotiating their hourly rates. Mr Cianfrano disagreed with this factual finding and said that it should not have been applied in the present case. In the May decision the Tribunal did not simply apply the finding of fact in Neary to the present case. Rather, it considered the parties' submissions and concluded at [53], that the documents in this case satisfied the test in s 7(1)(c)(ii). The Tribunal applied the correct test and addressed each limb of s 7(1)(c). We agree with the Department's submission that it was open on the evidence before the Tribunal to find that the information about hourly rates was exempt. 12 Mr Cianfrano also alleged under his first ground of appeal, that the CSO had quoted and tendered invoices in evidence before the Tribunal which recorded an hourly rate of $340. He conceded that no evidence to that effect had been before the Tribunal because the incident took place after the hearing. Even if Mr Cianfrano had established before the Tribunal that the CSO had disclosed its hourly rates in a document tendered to the Tribunal, that does not mean that disclosure of the CSO's hourly rates in response to an FOI application would not have an unreasonable adverse effect on its financial or business affairs. Giving a person access to a document under the FOI Act is, effectively, publication to the world. We agree with the Department's submission that that is very different from disclosure of information in the context of litigation where there is an implied undertaking that the parties will not disclose information for an unrelated or collateral purpose: Street v Hearne [2007] NSWCA 113 at [85]-[86]. 13 Ground 2 - wrong finding of fact. Mr Cianfrano's second ground of appeal was that the Tribunal erred in deciding that releasing the hourly rates charged by the CSO could adversely interfere with their ability to quote and compete for government work. Disagreement with the Tribunal as to a finding of fact does not amount to a question of law. 14 Ground 3 - failure to comply with s 89(5) of the ADT Act. Mr Cianfrano relies on s 89 of the ADT Act. The relevant provisions state that: . . . (3) If the Tribunal does not give reasons in writing for its decision: (a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and (b) the Tribunal must, within 28 days after receiving the request, give the party such a statement. . . . (5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. 15 Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give "adequate" reasons. Even though there is no statutory requirement governing the adequacy of reasons, at common law there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty applies to tribunals as well as courts. Mr Cianfrano did not explain which of the elements in s 89(5) the Tribunal had omitted in its reasons. Nor did he explain how the reasons for decision were inadequate. Consequently no error of law was identified. 16 Ground 4 - taking into account an irrelevant consideration. 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 at p 39. Mr Cianfrano said that the Tribunal had taken into account an irrelevant consideration but he did not identify either the discretionary power that the Tribunal was exercising or the irrelevant consideration that the Tribunal took into account. Mr Cianfrano also added under this ground that the Tribunal had applied the wrong statutory provision. He did not identify the provision that the Tribunal had wrongly applied, or the provision that should have been applied. No error of law is disclosed. 17 Ground 5 - errors in relation to legal professional privilege. Mr Cianfrano submitted that the Tribunal erred in its interpretation of the law in relation to legal professional privilege and that the Tribunal's finding was not justified or based on facts. He said that the decision in Trade Practices Commission v Sterling (1979) 36 FLR 244 and Waterford v Commonwealth (1987) 163 CLR 54 were "horse and buggy" cases because they were decided prior to the enactment of the FOI Act. In determining whether the exemption in clause 10 applies, the Tribunal must decide whether the document contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege. The decisions mentioned by Mr Cianfrano are relevant to that question. 18 Document L contained an email from a solicitor employed by the CSO to Mr Kingsley Perry, the Department's principal solicitor, seeking instructions from him in relation to an FOI matter. Mr Perry forwarded the email to Mr Havenstein, the FOI co-ordinator, with a recommendation as to what those instructions should be. The instructions were sought in the context of litigation before the Tribunal. Mr Cianfrano said that Document L was correspondence that may be purely administrative and noted that the privilege only attaches if a communication is made in the context of a solicitor/client relationship. 19 Neither of these submissions is persuasive. At [58] and [59] of its decision, the Tribunal applied the correct test in determining whether privilege attaches to the document. Contrary to Mr Cianfrano's submission, there is nothing in the decision to suggest that its determination depended on a mere assertion by the Department that legal professional privilege applied. The Tribunal inspected the document. We agree with the Department that it was open on the evidence to characterise the communication between Mr Perry and Mr Havenstein as a "communication made by Mr Perry in his professional capacity with a view to giving legal assistance" and the communication between the CSO and Mr Perry as "communication within a solicitor/client relationship for the purpose of legal advice". (See [58] and [59] of the May decision.) 20 Ground 6 - making a finding of fact with no evidence to support that finding. Mr Cianfrano did not indicate which finding the Tribunal made without any evidence to support it. 21 Ground 7 - breach of s 64 - application of government policy. Section 64 of the ADT Act obliges the Tribunal to give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or produces an unjust decision. Mr Cianfrano pointed to Memorandum No 95-39 issued on 12 October 1995 with the title "Arrangements for Seeking Legal Advice from the Crown Solicitor's Office". That document sets out the kinds of matters that government agencies must refer to the CSO. Significantly, it does not state that all legal matters affecting an agency must be referred to the CSO. Even if this Memorandum represents "government policy" as defined in s 64 of the ADT Act, Mr Cianfrano did not indicate how the Tribunal failed to give effect to it. He was not able to do so because the Memorandum does not apply to a decision of the Tribunal as to whether particular information is exempt under the FOI Act. 22 Ground 8 - Insufficient evidence of searches undertaken. The Tribunal concluded on the basis of evidence given by Mr Havenstein, that the search undertaken by the Department was sufficient. Mr Havenstein provided a statement and was cross-examined by Mr Cianfrano. The Tribunal agreed with Mr Cianfrano that one would expect the Agency to hold documents relating to counsel's fees, but accepted the evidence that it did not hold such documents. Mr Cianfrano said that apart from Mr Havenstein's statement, no documentary evidence was provided evidencing the searches that had been undertaken. We agree with the Department's submission that it was open on the evidence of Mr Havenstein to conclude that the Department's search was sufficient. The absence of particular documentary evidence is not fatal to the Department's claim. This ground of appeal discloses no error of law. Extension to the merits 23 Mr Cianfrano applied for his appeal to be extended to the merits of the Tribunal's decision, but he made it clear that he was not appealing against the Tribunal's decision not to exercise its so-called "override" discretion. He said that he had not been given a full opportunity to adduce evidence and make submissions because the CSO had introduced new material and issues before the Tribunal. When questioned about this ground of appeal, Mr Cianfrano said that it relates to evidence given by Mr Havenstein in cross-examination about three year contracts between the CSO and the Department. Mr Cianfrano said that he was not aware of this contract prior to asking the question and would have carried out more research if he had known of its existence. The fact that Mr Cianfrano was taken by surprise in relation to something raised by a witness in cross-examination does not justify re-opening the decision on the merits. Neither was there anything unfair or unorthodox about the Tribunal's fact-finding process which would warrant leave being given to extend the appeal to the merits of the Tribunal's decision. Conclusion 24 Mr Cianfrano listed 12 grounds of appeal on a question of law. In our view, none of those grounds identified a question of law that was applicable to the Tribunal's decision. During the course of the hearing he abandoned grounds 9, 10, 11 and 12. We appreciate that Mr Cianfrano is not legally trained, but nevertheless he has considerable experience in appealing against decisions of the Tribunal. It appears that Mr Cianfrano has identified various possible legal errors, relying on wording he perceives to be commonly used by lawyers, without more than a nominal reference to how those errors arise in the Tribunal's decision. May we suggest that before lodging appeals in the future, Mr Cianfrano gives close consideration to whether the Tribunal's decision discloses a legal error and/or grounds for an appeal on the merits. Hopefully that will avoid the Appeal Panel having to hear and determine appeals such as this which have no reasonable prospect of success. Orders 1. Leave is refused for the appeal to be extended to the merits of the Tribunal's decision. 2. The Tribunal's orders in the Cianfrano v Director General, NSW Department of Commerce [2007] NSWADT 233 are affirmed.

Cianfrano v Director General, NSW Department of Commerce

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