Determination of the s 44 issue
35The Commissioner must establish error of law in the Appeal Panel's determination. The Commissioner in his argument identified as the relevant error the failure of the Appeal Panel to recognise that upon a merits review, the Tribunal stood in the shoes of the decision-maker: see ADR Act, ss 63(1) and (2). If this proposition is made out, the relevant error will be an error in the construction and application of the relevant legislation. For the reasons which follow, the Court is satisfied that the Commissioner has established this error of law. The Court has also concluded that the Appeal Panel erred in failing to have regard to the interest of the Police Force in the outcome of a determination relating to an application for a banning order. Expressed in this way, the error is probably best understood as being the obverse of the first error. Finally, the Court is of the view that the Appeal Panel placed constraints upon the exercise of the discretion which are not warranted by the language of the section.
36The Appeal Panel was determining an appeal from an interlocutory decision of the Tribunal at first instance. Save for the requirement of leave the nature of the appeal was not identified. However, the Tribunal did not appear to proceed by way of a new hearing: the Civil and Administrative Tribunal Act, s 80(2). Presumably, therefore, the Appeal Panel approached the appeal on the basis that it was necessary for the Commissioner to establish error in the Tribunal's decisions.
37The Tribunal decision, as the Appeal Panel correctly identified, was a discretionary determination as to whether the Commissioner should be joined as a party. In determining whether the Tribunal erred in refusing the Commissioner's application, the Appeal Panel examined the principles that governed the exercise of discretion conferred by s 44. As the Appeal Panel recognised, the starting point was the text of the governing statute.
38The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party.
39A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle.
40The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.
41A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.
42The statutory "mission" of the New South Wales Police Force is "to work with the community to reduce violence, crime and fear": the Police Act 1990, s 6(1). The functions of the Police Force include "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way": s 6(3)(b). The Commissioner of Police, in turn, is responsible for the effective and efficient management and control of the functions of the Police Force: s 8(2)(b).
43The Liquor Act, s 3(2) provides that in order to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour). The functions of the Police Force specified in the Police Act, s 6(3)(b) and the provisions of the Liquor Act, in particular, s 3(2), are, properly viewed, complementary. This is reinforced by the requirement in the Liquor Act, s 116AE, that the Commissioner of Police is the only party who may bring an application for a long term banning order.
44It follows that the Commissioner is a proper party to be joined in the Tribunal proceedings. He is the statutory applicant before the Authority. In bringing the application under s 116AE, he is doing so, not only pursuant to the statutory power conferred by that section, but also in furtherance of the statutory functions of the Police Force. He has an interest in not only the decision of the Authority, but also in the outcome of any administrative review of that decision.
45The Appeal Panel was in error in not recognising that this was the Commissioner's interest such that he was a proper party to the proceedings in the Tribunal. The error could be characterised as an error to take into account a relevant consideration. However, as already indicated, these considerations are probably best viewed as the obverse of the Appeal Panel's error in failing to consider the application for joinder in the context of the Tribunal's statutory review power.
46Under the Administrative Decisions Review Act, s 63, the Tribunal is required to make the correct and preferable decision on the material then before it: s 63(1). The Tribunal is not confined to the material before the decision-maker. Importantly, for the purposes of making "the correct and preferable decision", the Tribunal may exercise all of the functions conferred on the decision-maker. In effect, in exercising the merits review function, the Tribunal stands in the position of the decision-maker. It must follow that persons who are parties to the application before the decision-maker are proper parties before the Tribunal. There was, therefore, an error by the Appeal Panel either in failing to have regard to the legislative function of the Tribunal when determining whether it had erred in the exercise of its discretion on the joinder application or, alternatively, in failing to construe and properly apply the legislation to the matter at hand. Under either articulation of the error, the error was an error of law.
47There were, with respect to the careful reasons of the Appeal Panel, other difficulties with the approach which may have led to the error identified and to which it is appropriate to refer. The Appeal Panel, in stating that the "normal position" before the Tribunal was the joinder of the parties referred to in r 27(a) and (b), appeared to give those provisions primacy in the sense that they either governed or were relevant to the question whether a party should be joined under s 44.
48Rule 27 does not have that operation. Rather, it is a prescription of those who are the parties to an administrative review decision. That prescription includes a party who has been joined pursuant to s 44. Thus, to construe s 44 by reference to r 27 would be circular. If this understanding of this part of the Appeal Panel's reasoning is correct, it was an error of law to construe the discretion conferred by s 44(1) by reference to r 27(a) and (b) only. Indeed, such an approach is contrary to the general rule that delegated legislation made under an Act should not be taken into account for the purpose of the interpretation of the Act itself: see Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19] and Pearce and Geddes, Statutory Interpretation in Australia (7th ed 2011, LexisNexis Butterworths) at 3.41.
49Another difficulty with the reasoning was the comparison made with other administrative decision-makers whose decision-making functions operate differently from the administrative decision in this case. For example, the reference to the decision of a local council subject of review in the Land and Environment Court is not an appropriate analogy. The Authority determines an application as between two persons, the Commissioner as applicant and the named person as the respondent to the application. The Authority makes a decision having regard to the information before it, including any submissions made by the respondent. The Authority has in that sense an adjudicative function. A local council does not make an adjudicative decision of the kind made by the Authority. Rather, it makes a decision on an application before it, having regard to the planning laws, instruments and policies which govern its decision-making. It does not adjudicate upon an application between opposing parties. If a review is sought of a local council's decision, it is, by nature of the decision involved, a proper party and active protagonist in the dispute.
50Likewise, the comparison with the role of the Police Force in a prosecution upon indictment did not provide useful guidance. The role of the Police Force in such a prosecution is different from the role of the Commissioner in bringing an application under s 116AE. Nor can the role of the Authority be equated with the role of the Director of Public Prosecutions in a criminal prosecution on indictment.
51Whilst these comparisons of themselves do not constitute errors of law, the lack of comparability in these examples provides some background as to why the Appeal Panel erred in the manner indicated.
52The Appeal Panel also referred to the principle said be derived from Walker v Commonwealth Trading Bank of Australia and Vandervell Trustees Ltd that in ordinary inter partes litigation, where the issue in dispute could be effectively and completely adjudicated upon in the absence of the party sought to be joined and where no order was sought against that party, joinder was unnecessary and ought generally not be allowed.
53In Walker v Commonwealth Trading Bank of Australia, a liquidator was seeking to recover loan repayment monies paid by the company to the Bank. The loans were secured by mortgages and guarantees. The Bank sought to join the mortgagors and guarantors in the preference proceedings. In doing so, the Bank was not intending to make any claim against those parties, but sought their joinder so as to ensure they were bound by the Court's finding on the question of preferences. The Supreme Court Rules 1970, Pt 8, r 2(b), which was under consideration provided that a party could be joined "where the Court gives leave to do so". Rule 2(a) provided that parties could be joined where common questions of law or fact would arise if separate proceedings were brought by or against the party to be joined and all rights to relief claimed in the proceedings were in respect of or arose out of the same transaction.
54Needham J was unable to find any commonly accepted principles in the case law as to joinder under r 2(b). His Honour concluded, at 502, that in the absence of any binding statement of principle, "the safe course [was] to construe the words of the rule in accordance with ordinary principle".
55His Honour held that the joinder of the mortgagors, against whom no claim was made, was not necessary in that case. His Honour did not consider that the joinder of the mortgagors was necessary to ensure that all matters in dispute would be effectually and completely adjudicated upon. In coming to this conclusion, his Honour did not follow the decision in Re Multi-Tech Services Pty Ltd (In Liq); Heard v Commonwealth Trading Bank of Australasia (1982) 30 SASR 218, where Jacob J had considered that the mortgagors had a common interest with the Bank in resisting the preference claim of the liquidator and that it was expedient in the interests of justice that the mortgagors be bound. Needham J also considered Vandervell Trustees Ltd v White, but without any endorsement of its reasoning. It should be noted, however, that the important consideration in Vandervell was that no claim was made by or against the revenue authority, being the party sought to be joined.
56There was no error in the Appeal Panel's consideration of these authorities. However, it was necessary in each case to determine whether any principle they considered was to be derived from those authorities was relevant to s 44. These two decisions and the principles stated in them did not provide a relevant guide to the exercise of the discretion in this case. Although no relief was sought against the Commissioner as such, nor was there in any relevant sense a question of the Commissioner being bound by the decision in the sense argued in Walker, for the reasons already given, the Commissioner had an interest in the outcome of the Tribunal proceedings.
57In conclusion on this point, whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case.