It's probably an issue in other jurisdictions as well.In NSW you can seek a certificate under the Suitors Fund in appropriate cases but even when granted, at the end of the day, payments are a matter of discretion for the Director General of the Attorney General's Department.
The NSW Court of Appeal has just told Michael McGuirk, who has featured in many freedom of information cases, that it won't give leave to appeal a Supreme Court decision in favour of the Independent Commission Against Corruption, which overturned a Tribunal Appeal Panel decision in his favour and awarded costs in the Supreme Court proceedings against him. McGuirk submitted that he should be able to argue against the cost order before the Court of Appeal because " 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."
He's right about the potential dampening effect on anyone who knows about what could happen if the matter ends up in the courts at the agency's initiative.It can be a tough and expensive game when you take on a government agency and end up in courts.
However the Court rejected the submission. Justice Giles made a rather weak distinction between this case and the pursuit of FOI rights, and other cases where cost orders were not imposed because of more compelling public interests.In commenting about the Court decision to award costs, he said :
"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."McGuirk also was stuck with ICAC costs for the unsuccessful Court of Appeal application.
The substantive issue at the heart of the matter was the Supreme Court finding that the Tribunal had no merits review powers where an agency rejects an application for documents concerning functions listed in Schedule 2 of the Act.
Blanket exemptions for ICAC and others that are not subject to review put a large hole in the transparency and accountability framework of the legislation. The need for them should be seriously questioned