CITATION: Wagner -v- Museum of Contemporary Art Limited [1999] NSWADT 114 DIVISION: General APPLICANT: John Wagner RESPONDENT: Museum of Contemporary Art Limited FILE NUMBER: 993167 HEARING DATES: 09/13/1999 SUBMISSIONS CLOSED: 09/13/1999 DATE OF DECISION: 13 September 1999 M B Smith - Judicial Member BEFORE: PRIMARY LEGISLATION: Freedom of Information Act 1989 APPLICATION: Review of decision to refuse access to documents (or part thereof) - MATTER FOR DECISION: Principal matter Applicant: In person REPRESENTATION: Respondent: C E Adamson of counsel instructed by Eakin McCaffery Cox 1. The decision under review is affirmed, ORDERS: 2. The application for review is dismissed. 3. The respondent's application for costs is refused. Ex-tempore 1 The above orders were made at the conclusion of the hearing of this matter. I gave oral reasons which, now slightly embellished, were as follows. 2 This is an application for review brought by Mr John Wagner and filed with the Tribunal on 22 July 1999. It refers to a decision made on 21 July 1999 as the decision which the applicant wishes to have reviewed. The decision refused an application under the Freedom of Information Act 1989 (NSW) ("the Act") for documents of the respondent. 3 Section 16 of the Act gives a right of access to agency documents. It provides: "16 Right of access to agencies' documents (1) A person has a legally enforceable right to be given access to an agency's documents in accordance with this Act." 4 Section 17 sets out the requirements for taking advantage of this right. It provides: "17 Applications for access to agencies' documents An application for access to an agency's document: (a) shall be in writing, and (b) shall specify that it is made under this Act, and (c) shall be accompanied by such application fee as the agency may determine, and (d) shall contain such information as is reasonably necessary to enable the document to be identified, and (e) shall specify an address in Australia to which notices under this Act should be sent, and (f) shall be lodged at an office of the agency, and may request that access to the document be given in a particular form referred to in section 27." 5 From these provisions it is clear that the right of access arises only if there is in fact an "agency" which has received an application under s 17. "Agency" is a special term of art, that is, a legal word in the context of the Act, because it is specially defined in s 6. Unless an application is made to an "agency" as defined, then the person or body who receives it obviously has no obligation to do anything more than refuse it on the ground that they are not an agency. 6 The definition in s 6(1) is: "agency means a Government Department, public authority, local authority or public office, but does not include a body or office that is, by virtue of section 9, exempt from the operation of this Act in relation to all of its functions." 7 This refers to four entities which are themselves specially defined in s 6(1) as follows: " Government Department means a Department within the meaning of the Public Sector Management Act 1988, and includes an Administrative Office within the meaning of that Act. local authority means a council or county council within the meaning of the Local Government Act 1993. public authority means a body that is a public authority by virtue of section 7. public office means an office that is a public office by virtue of section 8." 8 In the present matter, Mr Wagner prepared a document which was headed "Request for Inspection Access of Non Personal Information under the Freedom of Information (General) Regulation 1995 and Freedom of Information Act 1989 Friday, 9 July 1999." It stated that it was: "SUBMITTED TO: Secretariat of the Museum of Contemporary Art Limited Attn: John Cox". There was then descriptions of Mr Cox, including his being "MCA company secretary" and "MCA company general counsel". 9 It is not disputed that this document was received by Mr Cox acting as an agent or officer of the Museum of Contemporary Act Limited. There is no doubt that Mr Wagner attempted to make an application under the Act, and that it concerned documents of the body which is the present respondent. 10 On 16 July 1999 Mr Cox, describing himself as "company secretary", responded to the document by advising the applicant that the respondent was "not a public authority within the meaning of the Act, it does not, therefore, fall within the purview of the subject legislation." He returned the application fee. 11 On 21 July it would appear that the applicant sought a review of that decision, which was responded to by Mr Cox on the same day. It is this letter which the applicant has identified as containing the decision he wishes to have reviewed by the Tribunal. 12 The letter said "As indicated to you earlier, your application for access to documents under the Freedom of Information Act (NSW) is invalid. The Museum of Contemporary Act Limited is not subject to the Act. It is obvious, therefore, that your request for review is also without any jurisdiction and will not be dealt with." 13 No issue has been taken as to whether this letter did or didn't constitute a decision on internal review of a decision under the Act. In view of my conclusion on the substantive question, this jurisdictional issue does not need to be addressed. However, I comment that it appears appropriate for such a determination in response to a request under the Act to be treated as a decision made under the Act which is subject to the review and appeal provisions. 14 The application for review therefore raises before me the question whether Mr Cox was correct in thinking that the respondent was not an "agency" within the meaning of the Act. During the hearing I took Mr Wagner to the definitions relevant to the four categories referred to in the definition of "agency", and endeavoured to obtain his identification of which of the sub-definitions he relied upon. However, he was unable to assist me, so that I shall need to address them separately. 15 In my opinion there is no conceivable argument that the respondent is a "government department" or a "local authority". As to whether it is a "public authority", it is necessary to turn to the provisions of s 7, which provide: "7 Public authorities (1) In this Act, a reference to a public authority is a reference to: (a) a body (whether incorporated or unincorporated) established for a public purpose by or under the provisions of a legislative instrument, other than: (i) an incorporated company or association, or (ii) a body that, under subsection (2) or (3), is not to be taken to be a public authority, or (iii) the Legislative Council or the Legislative Assembly or a committee of either or both of those bodies, or (iv) a Royal Commission or a Special Commission of Inquiry, or (v) a local authority, or (b) a body (whether incorporated or unincorporated) established for a public purpose otherwise than by or under the provisions of a legislative instrument and declared by the regulations to be a public authority, or (c) any other body (whether incorporated or unincorporated) declared by the regulations to be a public authority, being: (i) a body established by the Governor or by a Minister, or (ii) an incorporated company or association over which a Minister is in a position to exercise direction or control, or (d) the Police Service, or (e) a Teaching Service, or (f) a statutory State owned corporation (and its subsidiaries) as defined in the State Owned Corporations Act 1989. (2) An unincorporated body (being a board, council, committee, subcommittee or other body established by or under the provisions of a legislative instrument for the purpose of assisting, or exercising functions connected with, an agency) shall not be taken to be a separate public authority but shall be taken to be included in the agency. (3) The regulations may declare that a specified body is not to be taken to be a separate public authority but is to be taken to be included in a specified agency. 16 There is in evidence before me a certificate of registration issued pursuant to the Corporations Law paragraph 1274(2)(b), which certifies that "Museum of Contemporary Art Limited Australian Company Number 003 765 517 is taken to be registered as a company under the Corporations Law of New South Wales. The company is limited by guarantee. The company is a public company. The date of commencement of registration is the eighteenth day of May 1989." This certificate was issued on 2 September 1999. 17 There is therefore no doubt that the recipient of the application for access by the applicant is an "incorporated company" and therefore excluded by sub-paragraph (i) from paragraph 7(1)(a), even assuming that it was "established for a public purpose by or under the provisions of a legislative instrument". 18 It can only come within paragraphs 7(1)(b) or (c) if it is a body which "declared by the regulations to be a public authority". The regulations made under the Act do not contain reference to respondent, and therefore it does not come within these paragraphs. 19 There is no doubt that it is not within paragraph 7(1)(d), because it is not the Police Service. It is not within paragraph 7(1)(e), because it is not a Teaching Service. It is not within paragraph 7(1)(f), because it is not a state owned corporation as defined in the State Owned Corporations Act 1989. 20 The respondent is therefore not a "public authority" as defined in the Act. 21 The fourth category of bodies coming within the definition of "agency" are "public offices", which is defined in s 8: 8 Public offices (1) In this Act, a reference to a public office is a reference to: (a) an office established for a public purpose by or under the provisions of a legislative instrument, other than an office that, under subsection (2), is not to be taken to be a public office, or (b) an office declared by the regulations to be a public office, being an office to which an appointment is made by the Governor or by a Minister otherwise than by or under the provisions of a legislative instrument. (2) The regulations may declare that a specified office is not to be taken to be a separate public office but is to be taken to be included in a specified agency. (3) A person shall not be taken to be the holder of a public office: (a) by virtue of the person's holding office as: (i) Governor, Lieutenant-Governor or Administrator of the State, or (ii) a member of the Legislative Council or the Legislative Assembly or of a committee of either or both of those bodies, or (iii) President of the Legislative Council or Speaker of the Legislative Assembly or chairman of a committee of either or both of those bodies, or (iv) a Minister of the Crown, or (v) a Parliamentary Secretary, or (vi) a member of the Executive Council, or (b) by virtue of the person's holding: (i) an office the duties of which the person performs as an officer of an agency, or (ii) an office of member of an agency, or (iii) an office established by or under the provisions of a legislative instrument for the purposes of an agency, or (iv) an office established by or under the provisions of a legislative instrument for the purposes of a body referred to in section 7 (1) (a) (i)-(v). 22 Thus, a "public office" must either be "an office" as described in paragraph (a) of s 8(1) or which is the subject of a regulation under paragraph (b). In relation to (a), there is no suggestion in evidence before me – nor in evidence which Mr Wagner attempted to put before me – that the Museum of Contemporary Art Ltd performs "an office established for a public purpose by or under the provisions of a legislative instrument". Indeed, there is no suggestion that it has anything to do with "an office" at all. In relation to paragraph 8(1)(b), it is enough to say that there are no relevant regulations. 23 I therefore considered that the decision under review was correct, and affirmed the decision and dismissed the application for review. 24 Counsel for the respondent then sought an order for costs in relation to the proceedings under s 88(1) of the Administrative Decisions Tribunal Act 1997 (NSW). This provides: "(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. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis. …" 25 Counsel submitted that the special circumstance in the present case was that the applicant's appeal to the Tribunal was without merit, and plainly so, because it involved a simple application of the definition of "agency" under the Act by reference to two facts that were well known to the applicant: the fact of registration as a company under the Corporations Law; and the fact that it was not listed as an agency in the Freedom of Information Regulations. 26 I agree that that the decision involved simple points of law. However, Mr Wagner says he is unsophisticated in Australian law notwithstanding that he is a US attorney. In any event, I accept that the same standards should not be applied to him as would be applied to a legal practitioner in Australia or someone employing such a legal practitioner. 27 Furthermore, the point as to the "coverage" of the respondent by the Act was separated by the President of the Tribunal as a preliminary point in the context of a series of requests for access under the Act and appeals to the Tribunal, which has arisen out of the applicant's concern to try to unravel the relationships between the University of Sydney and the Museum of Contemporary Art involving the Power bequest and the establishment of the Museum in premises at Circular Quay. A substantial appeal has been brought in relation to a refusal of access by the University of Sydney to numerous documents in relation to which exemption has been claimed, and in due course the Tribunal will have to look at the merits of these claims to exemption. It would be premature for me, at this stage, to attempt to form any view on whether or not there is or is not any merit in the applicant's wider campaign for access to information. 28 Weighing up the circumstances as they appear at this stage, I do not think that the applicant should be ordered to carry the costs of the respondent in the present proceeding. Whether the position will be the same in relation to future or other proceedings brought by the applicant will depend on their circumstances. 29 In relation to the present matter, I was not satisfied that there are special circumstances warranting an award of costs, and I refused the respondent's application. 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