Commissioner of Police, New South Wales Police Force v Fine

116AE Long-term banning orders-high risk venues 1)The Authority may, by order in writing (a long-term banning order), prohibit a person from entering or remaining on any high risk venue for such period (not exceeding 12 months) as is specified in the order. 2)A long-term banning order may only be made on application by the Commissioner of Police in the manner approved by the Authority. 3)The Authority may make a long-term banning order only if the Authority is satisfied that the person the subject of the proposed order: a.has been charged with, or found guilty of, a serious indictable offence involving alcohol-related violence (whether or not the offence was committed in the Kings Cross precinct), or b.has been given 3 temporary banning orders during a period of 12 consecutive months. 4)The Authority may not make a long-term banning order unless the person the subject of the proposed order has been given notice of the application for the order and has been given a reasonable opportunity to make submissions to the Authority in relation to the application. 5)In deciding whether to make a long-term banning order on the ground that a person has been given 3 temporary banning orders, the Authority may take into consideration the circumstances that resulted in the person being given those orders. 6)A long-term banning order takes effect on the date specified by the Authority in the order. Notice of the making of the order is to be given to the person who is the subject of the order, but failure to give notice does not affect the operation of the order if a reasonable attempt has been made to notify the person. 7)As soon as practicable after the Authority makes a long-term banning order, the Authority is to provide the approved system provider with the following information: (a)the name and address of the person who is the subject of the order, (b)the period that the order is in force. 8)The approved system provider is required to immediately record that information in the Kings Cross precinct ID scanner system. 9)A person who is the subject of a long-term banning order must not enter or attempt to enter or remain on any high risk venue during the period specified in the order. Maximum penalty: 100 penalty units. 2Mr Fine is employed as an operations manager at a Kings Cross venue known as "Showgirls", which is defined as a "high risk venue" within the meaning of s 116AA(2). 3In accordance with s 116AF of the Liquor Act, read together with cll 2 and 17 of the transitional provisions in schedule 1 to the Civil and Administrative Tribunal Act 2013 (NSW)(the Act), a person who is subject to a long-term banning order made under s 116AE may seek review of that decision in this Tribunal. These are the first proceedings for review under s 116AF. That section, together with s 116AE, was inserted into the Liquor Act by the Liquor Amendment (Kings Cross Plan of Management) Act 2013. Both sections commenced operation on 6 December 2013. 4After the proceedings were commenced, the ILGA sought to file a submitting appearance. On 16 January 2014, the proceedings were listed for a directions hearing and to deal with Mr Fine's application to stay the banning order. At the outset of that directions hearing, the Commissioner sought to be joined as a respondent to the proceedings, under s 44(1) of the NCAT Act. The Commissioner of Police, one of the appellants in the present appeal, submitted in support of that application that, inter alia, it was not appropriate for the ILGA to be an active participant, in light of the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35-36. Mr Fine opposed the application. 5Hennessy LCM, Deputy President, rejected the application for joinder on that occasion but granted the stay application on certain conditions, and also made orders for the filing of submissions and evidence, and set the matter down for hearing on 24 March 2014. In rejecting the application on that occasion the Deputy President did not preclude the Commissioner from bringing another application supported by appropriate evidence at a later time. 6The Commissioner subsequently filed a notice of appeal, which included an application for an extension of time in which to lodge the notice and an application for leave to appeal, on 6 March 2014. (For an explanation of the Tribunal's use of a multipurpose form see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [8]). The applications were listed for a directions hearing on 17 March 2014 before the President. At that hearing his Honour vacated the hearing on 24 March 2014, and set aside Hennessy LCM's directions for the filing of evidence and submissions. His Honour also ordered that the applications for an extension of time and leave to appeal, together with the appeal (assuming leave were granted) be determined on the papers (without an oral hearing), unless the Appeal Panel determined that oral submissions were required. 7The Commissioner thus seeks: (1)an order under s 41 of the Act extending the time in which to file his application to 6 March 2014, the date of filing, as the Notice of Appeal was filed three weeks after the expiration of the 28 day period prescribed under rule 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules); (2)leave to appeal from the decision of the Deputy President rejecting his application to be joined as a respondent to the proceedings for review since this decision was an interlocutory decision as defined in s 4 of the Act and leave to appeal is required by s 80(2)(a) of the Act; and (3)if leave is granted, a decision allowing the appeal, setting aside the joinder decision and in its stead an order that the Commissioner be joined as a second respondent to the review proceedings below.

Application for an extension of time 8The Deputy President's interlocutory decision was made on 16 January 2014. The Commissioner's legal representative sought advice from the Crown Solicitor on 3 February, that advice being received on 12 February 2014. The appeal was initiated on 6 March 2014, three weeks after the final date for lodging an appeal. The Commissioner therefore properly included in his notice of appeal an application for an extension of time under s 41 of the Act. 9Mr Fine argued that the delay was wholly unexplained and that the failure to provide a sufficient or adequate explanation for a delay of that magnitude must be fatal to the Commissioner's application for leave to appeal. He also submitted that it was no answer to this dilatory behaviour to say that Mr Fine would suffer no prejudice by the grant of an extension, nor could it be said that there would be substantial injustice if the Commissioner's application could not proceed. 10In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel identified the considerations that would generally be relevant in considering an application for an extension of time to lodge a notice of appeal and noted that, despite their importance for the orderly and timely conduct of proceedings in the Tribunal, time limits should not be allowed to become an instrument of injustice, as McHugh J emphasised in Gallo v Dawson [1990] HCA 30; 93 ALR 479 at [2]. The Appeal Panel held at [22] in Jackson that relevant considerations include: (1)The length of the delay; (2)The reason for the delay; (3)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (4)The extent of any prejudice suffered by the respondent (to the appeal)

• see Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] per Basten JA but note also [14] and Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]. 11It should also be borne in mind that while the discretion to extend time is unfettered, it must be exercised in the context of the statute or rule that creates the discretion: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [30]. The Tribunal should look at all relevant circumstances. 12In this case the delay was three weeks. Part of it occurred in the second half of January and the beginning of February when some legal and business activities are affected by the summer holidays. The delay appears to have been brought about, at least in part, by the following of internal government procedures that are presumably designed to ensure the prudent management of taxpayer funds and the need to obtain appropriate instructions. 13The delay in seeking leave to appeal and appealing might have caused some period of uncertainty for Mr Fine, but he did not claim that it would cause him hardship or work an injustice. 14Finally, the Commissioner's prospects on appeal are not insubstantial and the scope and application of the Hardiman principle in merits review proceedings are matters of some importance in the Tribunal (both in these proceedings and in proceedings before the Administrative and Equal Opportunity Division generally). 15In our view whilst most of the considerations do not weigh strongly in favour of or against extending the time, the significance of the scope and application of the Hardiman principle for this and other proceedings, tips the balance in favour of extending time. 16We therefore consider it appropriate to grant the requested extension of time so that the application for leave to appeal and, if leave is granted, the appeal itself can be heard and determined.

Application for leave to appeal 17The first respondent, Mr Fine, pointed out that the need for leave to appeal against interlocutory rulings serves a public policy purpose, namely to prevent the fragmentation of trials by an appeals against interlocutory rulings: In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323. While acknowledging that there are no rigid rules or exhaustive criteria governing the grant of leave to appeal, he submitted that leave should not be granted unless the judgment appealed from involves both an error of principle and substantial injustice would result if leave were not granted: Minogue v Williams [2000] FCA 125 at [19]. No substantial injustice would be caused if the Commissioner were not joined, as the ILGA would remain a party, acting as contradictor to Mr Fine's case. Nor was there any error of principle involved in Hennessy's LCM decision. 18The Appeal Panel has recently considered the principles which generally guide the consideration of whether leave to appeal should be granted under s 80(2) of the Act: see Collins v Urban [2014] NSWCATAP 17. At [84] the Panel summarised the principles as follows: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. 19It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt". 20The substantive point in the present appeal is the scope and application of the Hardiman principle in merit review proceedings in the context of an application for the joinder of a party. That point has been the subject of contention for many years and no consensus has yet emerged, especially in relation to whether the principle applies to merits review. The question that would arise on an appeal if leave were granted is thus properly characterised as more than "arguably wrong" and can legitimately be said to be "attended with sufficient doubt" as the Court put it in Niemann. 21In the present case it could not be said that the decision below would result in a substantial injustice if not corrected. On the other hand, at issue is relatively new legislation. This is the first case under the Liquor Act, s 116AF, a provision that is likely to give rise to multiple applications. Consequently, the appeal can legitimately been seen as raising questions or matters of administration or procedure which are likely to have general application in proceedings of this type. 22We therefore conclude that it is appropriate to grant leave to appeal in the present case and make an order granting leave accordingly.

Application by the Commissioner to be joined as a respondent 23Turning now to the appeal, the Appeal Panel notes that the rejection of the Commissioner's joinder application by the Deputy President was not accompanied by detailed reasons at that time nor were reasons sought by the Commissioner under s 62 of the Act. As stated above, the Deputy President's rejection of the joinder on that occasion did not preclude the Commissioner from making a further application for joinder supported by evidence at a later time. Nonetheless, the Commissioner chose to press his various applications raised in his Notice of Appeal. In these circumstances and in order not to delay proceedings further, the Appeal Panel decided to hear all the applications and, to the extent necessary, to deal with the appeal, leave having been granted, by way of a new hearing under s 80(3)(a) of the Act in order to avoid any technical or formal difficulties. 24In this appeal, the substantive and interrelated issues that arise are: (1)whether the Commissioner of Police should be joined as a respondent to the review proceedings; and (2)whether it is appropriate for the ILGA to participate actively in the proceedings (and more generally, in applications for review under s 116AF) in the light of the Hardiman principle.

The Commissioner's submissions 25Section 44(1) of the Act gives the Tribunal power to order that a person be joined as a party to proceedings "if the Tribunal considers that the person should be joined as a party". 26Mr El Hage of counsel appeared for the Commissioner and, in his detailed submissions, argued that the Commissioner should be joined as a party to the review proceedings because his interests were affected by those proceedings. It was he who lodged the application for the long-term banning order under s 116AE(2). Indeed, that section stipulates that the Commissioner is the only party who can lodge such an application. The outcome of the proceedings will therefore directly affect the Commissioner as the party who sought the banning order, and the affectation of a person's interest is the "touchstone of participation" in proceedings: Bignell v New South Wales Casino Control Authority [2001] NSWADTAP 41 at [14]. 27It was submitted that in addition to having a direct interest in the proceedings, the Commissioner is in the best position to assist the Tribunal, test Mr Fine's case and present a contradictory case. It is the Commissioner who gathers the relevant material records in support of the application for a long-term banning order and makes an application to the ILGA. Further, if an issue were raised in the proceedings concerning the materials or records submitted, or more general questions arose concerning Mr Fine's criminal record or conduct and associations, it would be the Commissioner, rather than the ILGA, who would be able to deal with such issues properly. The Commissioner should therefore be joined as a party to the proceedings, and indeed to any review of an order under s 116AE. 28The Commissioner also noted that in Hardiman, the High Court disapproved of the active role played by the Australian Broadcasting Tribunal (ABT) in a judicial review of one of its decisions. The ABT had sought to contest the challenge to its decision and made substantive submissions about the arguments presented. The Court considered that if the tribunal became a protagonist in the Court, there would be a risk of its endangering the impartiality which it is expected to maintain in subsequent proceedings, especially if the matter were remitted to the ABT for reconsideration. The Court reiterated that principle in Oshlack v Richmond River Council (1998) 193 CLR 72 at [12]. Later cases had applied it, while acknowledging that it is neither immutable nor inflexible. 29From the applicable legislation here, the Commissioner argued, the ILGA is an authority or tribunal which falls within the purview of the Hardiman principle. It is constituted as a statutory corporation and, subject to certain exceptions, it is not subject to ministerial control or direction. In the regime under s 116AE, proceedings before the ILGA are in effect inter partes proceedings. Its role is purely adjudicatory and it must afford procedural fairness to the party affected. It is therefore necessary that the ILGA maintain strict impartiality and avoid any perception of bias: see Capricornia Credit Union Ltd v Australian Securities and Investments Commission [2007] FCAFC 112. Joining the Commissioner to the review proceedings here would remove the need for the ILGA to participate actively in the proceedings. 30The decision below erred, the Commissioner contended, in holding that the principle does not apply to merits review. The full Federal Court in Capricornia accepted that the principle applied to merits review before the federal Administrative Appeals Tribunal (AAT), as have other cases. The Administrative Decisions Tribunal took a similar view in Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195. The Victorian Court of Appeal had adopted a different position in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422. Under the relevant legislative scheme there, the gambling commission had wide powers and functions and was endowed with special expertise in the field, enabling it to make a unique contribution in merits review proceedings. Further, the Court considered that the tribunal's power to remit matters to the commission was not directly relevant because the power was rarely exercised. On the other hand, it was submitted that the ILGA's role under s 116AE is entirely adjudicatory. In any event, the proposition that Hardiman does not apply to merits review proceedings is at odds with the cases outlined earlier. Nothing in the High Court's reasoning supports the view that the principle applies only to judicial review proceedings, the Commissioner submitted.

Mr Fine's Submissions 31The respondent accepted the Commissioner's submission that the joinder question was linked to the question of whether or not the ILGA should be an active participant in the proceedings. 32The respondent contended that "it is entirely orthodox that the Authority should appear as a party" notwithstanding the ruling in Hardiman citing Davies J in Re New Broadcasting Limited and Australian Broadcasting Tribunal and Brian Sydney Treasure [1987] AATA 151; 73 ALR 420 in support of the interpretation of Regulation 27 of the Civil and Administrative Tribunal Regulations 2013 (NSW) (the Regulations) as requiring the ILGA to be joined as a party. Further, Mr Fine submited that there are reasonable grounds for "why a first instance administrative decision-maker should appear and actively contest its decision upon a merits review" and refers to Class 1 proceedings in the Land and Environment Court of NSW, where local councils commonly appear and contest appeals which are in the nature of merits review against decisions to refuse development approval, as an example in support of this submission. 33The respondent also sought to distinguish the authorities of Hardiman and Oshlack, as relied upon by the Commissioner, on the basis that both decisions involved applications for judicial review as opposed to merits review, as is the situation before the Appeal Panel in this matter. He submited that: 5.3 In cases involving judicial review it is entirely understandable that the initial decision-maker should not endanger its impartiality, because if relief is granted to the applicant for judicial review, it would ordinarily be expected that the merits decision-maker would have to impartially re-determine any application on its merits. The respondent drew a distinction between situations where one of multiple possible consequences might be to remit the decision for reconsideration to the initial decision-maker and where such a course of action was "the ordinary consequence": an application for merits review being the former and an application for judicial review the latter, the respondent submit. The respondent further submited that a proper understanding of the Hardiman principle as reiterated by Ashley J in TXU Electricity v Office of the Regulator-General (2001) 3 VR 93, contradicting the manner in which the Commissioner sought to rely upon that decision, reinforces the distinction between judicial review proceedings and merits review proceedings in support of the respondent's case that there was no clear authority that "a first instance decision-maker must not or should not participate in a merits review proceedings".

Consideration of Joinder Application 34The Commissioner effectively put his application to be joined on two bases. First, he should be joined on general principles apart from the Hardiman principle. Secondly, he relied upon that principle as justifying or requiring his joinder in the present proceedings. The Appeal Panel will deal with each basis separately.

Joinder apart from Hardiman 35Unlike the joinder provisions in some comparable legislation, such as s 30(1A) of the federal Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) of the Act contains no requirement that applicants for joinder should show that their "interests are affected," but empowers the tribunal to order a person to be joined as a party "if the tribunal considers that the person should be joined as a party". Nor does it require common questions of law and fact. It is similar to r 6.19 of the Uniform Civil Procedure Rules in granting a wide discretion, although it is even more broadly expressed than that rule. 36That broad discretion is said, by the learned editor of Ritchie's Uniform Civil Procedure NSW, to have emerged from the long and technically complex history of litigation relating to joinder which reveals a practical concern about the efficient determination of essentially similar issues and the difficulty in formulating precise and acceptable criteria to distinguish permissible and impermissible joinder. The basic principle is that a court (or tribunal) should take the course most conducive to the just resolution of the dispute, having regard to the desirability of minimizing the costs and delay of litigation - see Ritchie's Uniform Civil Procedure NSW at [6.19.35]. The criteria developed under more narrowly drawn legislation remain relevant as considerations constituting useful guides to the exercise of the discretion, however. 37The Commissioner argued that his interests were affected by the proceedings, as he was the party who lodged the application for the long-term banning order and indeed is the only party authorized to do so. The Appeal Panel accepts that the "interests" in question need not be financial, proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law: Alphapharm v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; 121 ALR 373 at 382 (lines 30-46) per Davies J and at 395 (lines 35-44) per Gummow J. Davies J at 385 (lines 1-26) observed that the nature of the interests affected in any given case will be influenced by the subject matter and content of the relevant decision. In the context of administrative review, they may be a statutory authority's interest in the proper performance of its role: see for example Re Price and Official Trustee in Bankruptcy (1998) 49 ALD 785 at 788, although in that case joinder was refused for other reasons. 38Although the Commissioner submitted that not only were his interests affected but also he was in the best position to assist the Tribunal, test Mr Fine's case and present a contradictory case, he did not adduce any evidence in support of these various contentions. 39It is considered to be "a serious matter" to join a party in tribunal proceedings: Snowden Developments Pty Ltd v Actpen Pty Ltd [2005] VCAT 2910 at [17]. The joinder power is not to be exercised lightly: Lawley v Terrace Designs Pty Ltd [2004] VCAT 1825 at [26]. 40The normal position in administrative review proceedings in the Tribunal, as contemplated by r 27(a) and (b) of the Rules is that the parties to such proceedings are the applicant and the person or body in respect of whom the order or other decision is sought. As Mr Hatzis, solicitor for Mr Fine, pointed out in his written submissions, that is also the orthodox position in other merits review jurisdictions, such as the Land and Environment Court, where councils commonly appear and contest appeals (which are in the nature of merits review) against their own decisions to refuse development approval. 41Further, in ordinary inter partes litigation (albeit under more restrictive joinder rules), where the issues in dispute could be effectively and completely adjudicated upon in the absence of the party sought to be joined and where no order is sought against that party, joinder of that party is unnecessary and ought not generally to be allowed: Vandervell Trustees Limited v White [1971] AC 912 at 930 and 944 and Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496. 42The ILGA has the responsibility for making orders under s 116AE and undoubtedly its interests, in the broader sense outlined above, are affected if a person challenges one of its decisions in the Tribunal. The Commissioner's role, however, may be seen as that of an investigative official with the power to institute proceedings seeking an order from the ILGA. His functions are not affected in the same direct way as those of the responsible authority. Nor is it evident how the Commissioner's role in the present proceedings cannot be properly performed without his becoming a party. That, indeed, is the position in relation to his role in relation to criminal prosecutions on indictment, in which the prosecuting authority seeks from him information, records and other material held by the Police Force. 43The Tribunal, whether sitting in a Division or as the Appeal Panel, is required to exercise its powers and interpret the Act and the Rules to give effect to the guiding principle so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings under s 36(2) of the Act. The AAT has said that it is unnecessary to produce evidence to support the proposition that joinder of a party would increase the cost of the proceedings: Re Sew Eurodrive Pty Ltd and Collector of Customs (1994) 35 ALD 790 at 791. Having two respondents in the present proceedings, the Commissioner as well as the ILGA, may well increase the costs of proceedings. 44For these reasons and having regard to guiding principle in s 36 of the Act, we are not persuaded that the Commissioner has established that his joinder is necessary or appropriate in order to do justice in the proceedings. The Tribunal below did not make any error in refusing the Commissioner's joinder application on the basis of general principles other than the Hardiman principle. 45The question whether the Hardiman principle applies so as to require joinder, however, must now be considered.

The Hardiman principle and merits review 46The Hardiman principle has been briefly stated as a rule which "prevents a tribunal from appearing as an active party in judicial review proceedings of one of its decisions. The rule is subject to so many exceptions and extensions that its precise scope is not entirely settled": Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at 756. 47The principle has been widely applied in the context of judicial review in cases such as Oshlack v Richmond River Council (1998) 193 CLR 72, Fagan v Crimes Commission Tribunal (1982) 150 CLR 666 and Murlan Consulting Pty Ltd v Kuringai Municipal Council (2009) 170 LGERA 162. The Commissioner contended that it had been applied in relation to merits review proceedings in such cases as Capricornia Credit Union Ltd v Australian Securities and Investment Commission [2007] FCAFC 112 and Nature Conservation Council of New South Wales v Department of Trade and Investment [2012] NSWADT 195, but the issue has not yet been squarely dealt with and made the subject of a direct holding. 48In TXU Electricity v Office of the Regulator-General, Ashley J extensively reviewed the authorities and considered the categories of cases in which the rule applied, but accepted that the principles he proposed did not properly state the nature and limits of the rule and conceded that it remained uncertain, though clearly subject to many recognized exceptions: at [18] - [21]. Apart from that, the courts have not sought to develop general or overarching principles to explain why the Hardiman principle might or might not apply (see M Groves, "The Hardiman Rule" (2012) 33 Adelaide Law Review 370, 376). 49The remedial powers of many merits review tribunals commonly include the power of remittal. That raises the question whether the remittal power in merits review legitimately gives rise to concerns similar to those expressed in Hardiman so that decision-makers subject to merits review should refrain from active involvement in that review in order to preserve their perceived impartiality if the matter is remitted. 50In the absence of a clear and authoritative exposition by the Courts, the inquiry as to whether the principle applies to merits review must return to the underlying rationale of the principle as its point of departure. A leading case rejecting the application of the principle to merits review and clearly setting out the rationale for that position is Re New Broadcasting Ltd. In that case, in which a company appealed to the AAT against an ABT decision, the ABT appeared before the AAT to explain the reasons for the decision, but made no other submissions. 51In expressing strong disapproval of that approach, Davies J declared that it was wrong to assume that the cautions sounded in Hardiman extended to merits review proceedings. One key ground was that the AAT rarely exercised its power to remit decisions to a decision-maker and instead normally assumed the powers of the primary decision-maker to make a new decision, "in the overwhelming proportion of cases": (1987) 73 ALR 420 at 431. This is because the AAT, like this Tribunal, in merits review proceedings is required to make the "correct and preferable decision" and only remits matters to the original decision maker where this cannot be done (in relation to the AAT see Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577 at 589 cited with approval in Esber v the Commonwealth (1992) 174 CLR 430 at 440; and Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18 citing with approval Brennan J in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161; and in relation to this Tribunal see the Act, s 30(1) and the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 63). 52The other main ground on which Davies J held that the rule did not apply in Re New Broadcasting Ltd was that merits review proceedings required respondent agencies to assume a fundamentally different role from that applying in judicial review. Merits review involved the making of a new decision, after consideration of the facts and evidence presented to the tribunal. Davies J (a judge of the Federal Court, and for eight years President of the AAT) considered that the AAT could best exercise the merits review function and reach the correct or preferable decision if it were assisted by the original decision-maker. His Honour noted, at 439 (line 47)-431 (line 2), that this assistance was consistent with the provisions by which decision-makers are normally made the respondent in merits review proceedings by virtue of the Administrative Appeals Tribunal Act 1975 (Cth), s 30(1) - as is the case in this Tribunal under rule 27 of the Rules. 53In the Appeal Panel's view, these considerations apply with equal force in relation to merits review proceedings in this Tribunal, including the present proceedings. 54Further support for the propositions articulated in New Broadcasting is provided by Macedon Ranges, in which the Victorian Court of Appeal acknowledged that a decision-maker normally had "a unique contribution to the review" of the merits of a decision: at [31]. Warren CJ, Maxwell P and Osborn AJA continued: The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge and expertise possessed neither by the tribunal nor any adversarial party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed exclusively by the aims and objectives of the statutory scheme (ibid). 55The observation that most decision-makers acquire considerable expertise in the area they administer and that expertise might often enable them to provide valuable insight into any review of their decisions is inherently credible and deserves considerable weight in this regard: see M Groves, 2012, "The Hardiman Rule" (2012) 30(2) Adelaide Law Review 371, 379. 56All three of those considerations referred to above apply in the present case. First, this Tribunal, like its predecessor the Administrative Decisions Tribunal, seldom exercises its power to remit a decision to a decision-maker and instead almost always make a new, correct and preferable decision. Secondly, as a merits review body, this Tribunal discharges its statutory functions by making the correct and preferable decision on the basis of all the evidence available to it at the time of its review: see ADR Act, s 63. In these circumstances, it is likely to benefit from assistance by the original decision-maker. Thirdly, the ILGA has been made the repository of extensive powers and responsibilities in the administration of the liquor and gambling laws of New South Wales. It has been given an independent status insulating it to a certain extent from ministerial direction or political influence. It is structurally likely to develop extensive expertise and insight into the proper regulation of those fields. No doubt it may draw significantly on the resources of the Commissioner in order to fulfil its role as contradictor of an applicant's case before the Tribunal. That fact, however, does not compromise the ILGA's position and impartiality, nor does it interfere with the Commissioner's ability to perform his role. 57The importance and significance of the distinction between judicial and merits review for these purposes was clearly expressed by the Victorian Full Court in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd at [34]: First, judicial review is concerned with error of law. There is no room for debate about the merits of the decision under challenge. Secondly, if the decision under review is found vitiated by error of law, the ordinary course is for the decision to be quashed and the matter remitted to the primary decision-maker, which must then carry out the decision-making process afresh in accordance with the legal ruling of the Court. Hence the importance of the decision-maker preserving its impartiality [in judicial review proceedings]: at [34]. 58In Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [273] - [276], the New South Wales Court of Appeal referred to Macedon Shire, albeit in a somewhat different context, without disapproval. 59The conclusion that the Hardiman principle does not apply generally to merits review proceedings such as the present should not be seen as depriving the Tribunal of the flexibility to deal with special or unusual cases where the appropriateness of joinder of another party is established by the evidence and circumstances in those cases. As the Courts noted in TXU Electricity v Office of the Regulator-General and Fagan v Crimes Commission Tribunal (1982) 150 CLR 666, Hardiman itself is not "immutable". Consistently with that approach, the exclusion of that rule from merits review proceedings should itself be regarded as non-absolute and flexible. In an appropriate case, the Hardiman principle should be applied to permit joinder of another party as the contradictor. 60We therefore conclude that the ILGA is not required to take a purely passive role in these proceedings before the Tribunal challenging one of its decisions. In the circumstances of the case, joinder of the Commissioner to act as a contradictor in the proceedings is not necessary.

Conclusion on the Appeal 61For these reasons, the Appeal Panel is not satisfied either on the basis of general principles of joinder or on the basis of the principle in Hardiman that the Deputy President erred in refusing the Commissioner's application for joinder and would reject that application. Accordingly, the appeal should be dismissed.

Costs 62At the directions hearing on 17 March 2014, the issue of costs was raised and the Appeal Panel expressly noted that the Commissioner was prepared to submit to an order for costs in favour of Mr Fine for costs incurred in respect of the application for an extension of time, application for leave to appeal and the appeal, if leave were granted, in a sum not exceeding $3000. 63The Appeal Panel anticipates that the question of costs can be practically dealt with between the solicitors for the parties and it is not necessary for the Appeal Panel to make an order in relation to costs. If, contrary to our expectation, this is not the case, each party has liberty to apply to the Appeal Penal on the question of costs.

Orders 64The orders of the Appeal Panel are: (1)The time for filing of the Appellants' Notice of Appeal be extended to 6 March 2014. (2)The appellants be granted leave to appeal. (3)The appeal be dismissed. (4)Each party has liberty to apply within 14 days of these orders in relation to the question of costs. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 30 May 2014 - Not removed prior to publishing Amended paragraphs: Cover Sheet - Case Name, 'and Independent Liquor and Gaming Authority' Removed DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2014