McGuirk v Independent Commission Against Corruption [2008] NSWCA 302 | Case summary

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

Any body or office specified or described in Schedule 2 is, in relation to such of the functions of the body or office as are so specified or described, exempt from the operation of this 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 in para (b) - "a document that contains matter relating to functions in relation to which a body or office is, by virtue of section 9, exempt from the operation of this Act." 6 The Madgwick report was a document relating to ICAC's corruption prevention, complaint handling, investigative and report functions. The Tribunal member held that, that being so, s 9 applied and ICAC was relevantly exempt from the operation of the FOI Act, so that it was not open to the Tribunal to engage in external review of the applicant's request. 7 In taking a different view the Appeal Panel paid particular regard to para (b) in the definition of "exempt document". Simpson J considered that there was a clear distinction between exemption of a document and exemption of a body or office, and that the Appeal Panel had erred in basing its decision upon the exemption of a document in accordance with the definition when the correct approach was through s 9. 8 In my opinion, her Honour's reasoning and decision is correct. But for the fact that the Appeal Panel had held otherwise, I would respectfully not have considered that there was an arguable case to the contrary. 9 In support of his application for leave to appeal in relation to her Honour's substantive decision, Mr McGuirk pointed to the importance in the operation of the FOI Act of understanding the correct manner in which s 9 operates. I accept that that is important, going beyond the particular importance in the present case. However, in considering whether or not leave to appeal should be granted it is also necessary to have regard to the availability of an argument in support of the prospective appeal. I have come to the view that there is really not a substantial argument. 10 Mr McGuirk's submissions included that he had been denied natural justice in the hearing before her Honour, in that he had not been permitted to put all that he wished to put. We were taken to the transcript. I am quite unpersuaded that there was anything in the manner in which the hearing before her Honour proceeded which precluded the applicant from putting his submissions. 11 Coming then to the exercise of discretion in relation to the grant of leave, in my opinion the discretion should be exercised adversely to the grant of leave from the substantive decision. There has been a first hearing before the Tribunal member, a second hearing before the Appeal Panel and a third hearing before Simpson J, in the hierarchical structure permitted under the legislation. Certainly the Appeal Panel decided in favour of Mr McGuirk, but for the reasons I have given I regard that as aberrant. I do not think a fourth tier of consideration is warranted, notwithstanding what I acknowledge as to importance, because I do not think that there is a sufficient prospect of any success in an appeal. 12 I turn then to the decision as to costs. In a separate judgment her Honour ordered that Mr McGuirk pay ICAC's costs. It was submitted before us that this was an extraordinary decision when Mr McGuirk had been seeking access to the Madgwick report under the provisions of the FOI Act, had succeeded before the Appeal Panel, and had been taken to the Supreme Court on appeal by ICAC. Mr McGuirk made the point that in a number of so-called public interest cases it was the individual claiming to act in the public interest who had brought the proceedings in which costs came to be considered, but that in the present case he was taken to the Supreme Court. He drew attention to a decision of Sully J, Independent Commission Against Corruption v Cripps (27 August 1996, unreported), in which with citation from Kent v Cavanagh (1973) 1 ACTR 43 his Honour was moved to make an order that the parties pay their own costs because he considered, that it was not in the public interest to encourage the view that when a public body such as ICAC sought to challenge the validity of a claim of fundamental right, in that case legal professional privilege, the advantages otherwise enjoyed by that public body should be augmented by the threat of a costs order in the event that the claim of right was not upheld. 13 Legal professional privilege and the claim made by Mr McGuirk pursuant to the FOI Act are not necessarily to be equated as claims of fundamental right, and Sully J made very clear that he was not laying down a hard and fast rule and said that the circumstances of his case involved "the great importance attached by our jurisprudence to legal professional privilege". Perhaps more important, Simpson J was referred to Independent Commission against Corruption v Cripps, and in summary form herself referred to its import in her reasons. 14 Before us, as before her Honour, Mr McGuirk submitted that a costs order such as that made against him would have a major dampening effect on persons who sought to exercise their claimed entitlement to gain access to information pursuant to the provisions of the FOI Act, an entitlement which he correctly said was given importance in the scheme of the legislation. However, Simpson J bore all that in mind. Her Honour was exercising a discretion. For the purposes of the leave application it is necessary to consider whether it can be said, and with what degree of force, that her Honour's decision was so unreasonable that it fell outside a proper exercise of the discretion. I do not think that it can be said with particular force. Appeals against discretionary decisions, particularly on matters of costs, are difficult. In my judgment the prospects of success in an appeal against the costs order made by her Honour are very slight. In those circumstances, in my opinion the proper exercise of our discretion is to decline to grant leave to appeal in that respect also. 15 Accordingly, I propose the order that the application for leave to appeal be dismissed. I would not say anything at the moment about costs, in the anticipation that further submissions may be put. 16 HODGSON JA: I agree. Mr McGuirk argued that the substantive appeal was arguable because it was in accordance with the decision of the appeal panel given on 26 April 2006. 17 The view of the appeal panel was that s 9 of the FOI Act exempted ICAC only "in relation to certain functions" and not in respect of the application of s 53 of that Act. I see no basis for so limiting the effect of s 9. The definition of exempt document in s 6 does not give such a basis because it applies to cases where a document of the relevant kind is in the possession of an agency other than an agency exempted by s 9. 18 In relation to costs I merely note that although submissions were not advanced in relation to this, it seems that this would have been a case in which the Suitors Fund Act applied and a certificate could have been granted. It may still be open to the applicant to get the benefit of that Act.

McGuirk v Independent Commission Against Corruption

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