McGuirk v New South Wales Ombudsman [2009] NSWADTAP 9 | Case summary

REASONS FOR DECISION Introduction 1 Mr McGuirk has applied to the Appeal Panel to re-open a previous Appeal Panel decision handed down on 10 April 2008 - McGuirk v New South Wales Ombudsman [2008] NSWADTAP 20. The grounds for that application were that the Appeal Panel had failed to exercise jurisdiction and had denied him procedural fairness. 2 In the previous oral reasons for decision at [2] to [8] the Appeal Panel outlined the background to its decision: 2 . . .On 18 December 2007, Mr McGuirk filed a notice of appeal in the Tribunal against a decision that Mr Montgomery made on 21 November 2007. The Tribunal decided that it had no jurisdiction in relation to two applications made by Mr McGuirk . The notice of appeal included a one page attachment identifying four alleged errors of law and one reason for the Tribunal to extend the appeal to the merits of the Tribunal's decision. Mr McGuirk was notified of the manner in which the appeal would proceed by letter of 19 December 2007. By letter of 21 December 2007 the Registry advised Mr McGuirk of the directions that Deputy President, Magistrate Hennessy had made in relation to the proceedings. Those directions were as follows: 1) The appellant is to file and serve submissions by 18 January 2008 2) The respondent is to file and serve any submissions in reply by 15 February 2008 3) The appeal is listed for hearing on 14 March 2008 at 10am. 3 By letter of 11 January 2008 Mr McGuirk wrote to the Tribunal in relation to this and other matters in which Deputy President Hennessy was presiding. That letter objected to Deputy President Hennessy further participating in any proceedings in which he was a party. The reasons he gave for that objection were, as he saw them, compelling evidence that she had a strong pro-agency bias; that she had exhibited hostility to him and that a fair minded person would perceive she was biased. The letter is quite long and went into further detail in relation to this and other matters. That letter was sent to the Registrar and I understand the President responded although his response is not on the file. 4 Mr McGuirk wrote to the Tribunal again on 11 January 2008 in relation to this matter in particular referring to the Registrar's letter of 21 December 2007. Mr McGuirk made further objection to Magistrate Hennessy presiding enclosing an email sent by the Deputy Ombudsman Mr Christopher Wheeler to Deputy President Hennessy on 17 January 2007. Mr McGuirk demanded, in that letter, that Magistrate Hennessy withdraw from any involvement in matters before the Tribunal to which he was a party. 5 On the 29 January 2007, (it is apparent that this is a typographical error and the date should be 29 January 2008) the NSW Ombudsman wrote to Mr McGuirk advising that they had not received any submissions from him and that their inquiries had confirmed that the Tribunal had not received any submissions. The NSW Ombudsman said that in those circumstances it was unlikely to be in a position to file and serve submissions by the specified date. On 31 January 2008 Mr McGuirk responded to the Ombudsman in part in the following terms: "The essence of my correspondence is that I am of the view that Deputy President Hennessy is not a fit and proper person to preside over this matter. The reason for my view is that I have irrefutable documentary evidence that Magistrate Hennessy has colluded with the Deputy Ombudsman, Mr Christopher Wheeler to undermine the operation of the Freedom of Information Act in New South Wales." 6 In the penultimate paragraph Mr McGuirk says, "If Magistrate Hennessy does not withdraw from this matter I propose to seek an injunction from the Supreme Court directing her to withdraw and also relevant declarations from that Court in regard to her conduct." 7 On the 8 February 2008, the NSW Ombudsman wrote to the Registrar of the Tribunal advising that it had received correspondence from Mr McGuirk , dated 31 January 2008. The Ombudsman advised that as it had not received any submissions from Mr McGuirk in this matter it would not be in a position to file and serve its submissions in reply by the directed date. The Ombudsman then made an application for a directions hearing in the matter. On 15 February 2008 the Tribunal wrote to Mr McGuirk advising him that Magistrate Hennessy had made the following directions: 1. If the applicant wants to make an application for Ms Hennessy to disqualify herself he should do so and the issue will be determined at the hearing on 14 March 2008 2. The hearing of 14 March 2008 will not be vacated 3. If no submissions are filed by the appellant prior to the hearing the appellant can make his substantive submissions at the hearing 4. If the respondent is disadvantaged by not knowing the case before them they can be given time to file written submissions in response following the hearing. 8 The matter was listed for today, 14 March 2008 and there is no appearance for Mr McGuirk. Words in brackets added 3 The alleged errors of law that Mr McGuirk identified in his Notice of Appeal were as follows: 1.The Tribunal erred at law by finding that the Tribunal had no jurisdiction to hear and determine either of the applications made by the appellant. 2. The Tribunal erred at law by finding documents that are dated after the date of receipt of the FOI application made by the appellant are outside the scope of the request. 3. The Tribunal erred at law by failing to consider whether the Ombudsman had acted for proper purposes and in good faith in refusing the appellant access to the documents sought in his two FOI applications. 4. The Tribunal erred at law by failing in its construction of the phrase "relating to" in the context of beneficial legislation such as the Freedom of Information Act 1989. 4 The Appeal Panel decided that the four errors of law had not been sufficiently particularised for the Appeal Panel to understand the precise question that Mr McGuirk was attempting to identify. The Appeal Panel went on to note that under section 113 of the ADT Act an appellant is required to identify a question of law when lodging an appeal. The Appeal Panel concluded at [12] that: While it is arguable that he has identified a question of law we are not in a position to determine whether or not an error has been made out on the basis of the Notice of Appeal as currently filed. 5 The Appeal Panel then considered whether to give leave for the appeal to be extended to the merits of the Tribunal's decision. The Appeal Panel noted at [14] that ". . . there needs to be either some unfairness or an unorthodox approach in relation to the fact finding or some other reason, apart from an error of law, which would justify an Appeal Panel re-opening a case on its merits." Mr McGuirk's reason for seeking leave was that ". . . there was evidence before the Tribunal that proves the Ombudsman is subject to "regulatory capture" and has failed to fulfil his obligations to the people of New South Wales." In response to that submission, the Appeal Panel concluded at [15] that: Mr McGuirk would need to identify the precise nature of that evidence and why he says it proves the proposition he is putting forward. It is not up to an Appeal Panel to go through each and every document that may have been provided to the Tribunal and speculate about the matters to which he is referring. Mr McGuirk goes on to say, "The documents sought by the appellant must be released and the conduct of the Ombudsman exposed to public scrutiny. It is vital for democracy in this State that the failures of the Ombudsman be revealed and urgent action taken to rectify these failures." That is nothing but an expression of an opinion as distinct from a well-founded reason for extending the appeal to the merits. The Appeal Panel's decision is to refuse leave for the appeal to be extended to the merits of the Tribunal's decision. 6 Ms Morgan, representing the Ombudsman, then applied for an order for costs on the basis of Mr McGuirk's failure to comply with the directions of the Tribunal and his "abandonment" of the appeal by failing to appear at the hearing without notifying the Tribunal or the Ombudsman of that intention. The Appeal Panel decided, at [17], that: Mr McGuirk failed to comply with the directions made by the Appeal Panel. Mr McGuirk expressed his objection to Magistrate Hennessy presiding in the appeal but did not make an application for her to disqualify herself from sitting in these proceedings, nor did he make an application for the hearing to be adjourned. He did not contact the Tribunal at any time to advise that he did not intend to attend the hearing today. We regard those as special circumstances warranting an award of costs Application to re-open Appeal Panel's previous decision 7 Mr McGuirk submitted that the Appeal Panel had made four errors which justified us re-opening the previous decision. Those errors were: 1. that the Appeal Panel failed to consider his application for referral pursuant to section 58 of the Freedom of Information Act; 2. that the Appeal Panel failed to consider two applications he made in correspondence with the Tribunal for Magistrate Hennessy to disqualify herself from hearing the appeal; 3. that the Appeal Panel failed to consider the four questions of law he identified in his Notice of Appeal; 4. that the Appeal Panel had breached the rules of procedural fairness by not giving him an opportunity to make submissions in relation to an application for costs. Referral of question to Supreme Court 8 At the beginning of the hearing, Mr McGuirk proposed that the Appeal Panel refer a question of law to the Supreme Court pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The question which Mr McGuirk suggested the Appeal Panel refer was as follows: "Whether the Tribunal has the power to reopen a decision which has been vitiated by error." 9 Section 118(1) provides that: An Appeal Panel determining an appeal under this Part may, of its own motion or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. 10 Mr McGuirk submitted that although s 118 uses the word "may", the Appeal Panel must refer this question in the circumstances of this case. The reason he said that it was mandatory for the Appeal Panel to refer this question was that this was a proper case for the question to be referred because it affects every decision of the Tribunal. He quoted the decision of Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 in support of that proposition. That case dealt with a by-law of the Council of the shire of Swan Hill which stated that, "No person shall proceed to erect, or cause to be constructed any shop, house, building, tent, hoarding, or addition to any existing building, unless with the approval of the council, and he shall give the council or its surveyor not less than seven clear days' notice in writing of his intention to build . . " Mr McGuirk pointed to a passage at 757-758, where Dixon J said: When a provision of this kind is made it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. 11 Ms Morgan, representing the Ombudsman, responded by submitting that the Appeal Panel only has power to refer a question of law to the Supreme Court when it is "determining an appeal". As the Appeal Panel has not yet decided whether to re-open the appeal, it is not "determining an appeal" within the meaning of that term in section 118. Alternatively, Ms Morgan said that this was not a proper question for the Appeal Panel to refer. 12 We decided during the course of the hearing not to refer the question of law proposed by Mr McGuirk to the Supreme Court. Our reason was that we do not have jurisdiction to do so because we were not "determining an appeal" in accordance with s 118 nor had Mr McGuirk identified a question "arising in the appeal". Alternatively, even if we were determining an appeal, this was not a proper case in which to refer that question. Firstly, the question presupposes that the Appeal Panel's decision was "vitiated by error" when that question has not been determined. Secondly, there is High Court authority in Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117 on the question of the circumstances in which a tribunal has a duty to re-open its proceedings. This Appeal Panel is able to interpret and apply that decision to the circumstances of this case. The parties are entitled to appeal against any decision to the Supreme Court should they be of the view that the Appeal Panel has made an error of law. Basis for re-opening Appeal Panel's previous decision 13 Mr McGuirk relied on the High Court's decision in Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 11 as authority for the proposition that a tribunal may reopen its own decision if it has made a jurisdictional error. He also relied on the following passage from the High Court's decision in Craig v South Australia 184 CLR 163 at 179: If such an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it. 14 The general rule (known as functus officio) is that once a person or body has exercised a statutory power or duty, that person or body has no further authority to exercise it again. Some of the policy considerations underlying the general rule in the context of regulation of the medical profession were considered by the Victorian Court of Appeal in Kabourakis v the Medical Practitioners Board of Victoria [2006] VSC 301at [64] to [69]. Those policy considerations include the uncertainty that would arise and the possibility that a decision maker could change a decision many times, even years after the original decision had been made. 15 The power to re-open a decision depends, to a great extent, on the statutory framework in which the person or body operates. Chapter 7, Part 1 of the ADT Act deals with internal appeals. Section 113 gives a party a right to appeal against certain decisions of the Tribunal: 1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 16 Section 112(3) specifically excludes from the definition of "appealable decision" a decision of an Appeal Panel. 17 The powers of the Appeal Panel when hearing an appeal on a question of law are set out in s 114 of the ADT Act: (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (Emphasis added) (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal. 18 Section 115 deals with an application for leave to extend an appeal to the merits of the Tribunal's decision: (1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned. (3) In determining any such appeal, the Appeal Panel may decide: (a) to affirm the decision, or (b) to vary the decision, or (c) to set aside the decision and make a decision in substitution for the decision it set aside. 19 Section 118(1) gives an Appeal Panel determining an appeal power to refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. Section 119 gives a party to proceedings before an Appeal Panel the right to appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel. In addition to those provisions, s 87 of the ADT Act gives the Tribunal power to alter the text of a decision where there has been "an obvious error". Neither party relied on the so-called "slip rule" and it does not apply to the circumstances of this case: Allianz Australia Insurance Ltd v Crazzi (2006) 47 MVR 74 at [129] to [148]. Nor did the parties rely on s 48 of the Interpretation Act 1987 which provides that "[I]f an Act confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires." In this case, the character of the power concerned is such that it is not exercisable from time to time but is exhausted once exercised. 20 The most authoritative statement of the law in relation to the circumstances in which a tribunal has power to re-open its decisions was made by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117. At 129 and 130 Gaudron and Gummow JJ (McHugh J agreeing) decided that: . . . a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. 21 The High Court confined the duty to re-open a decision to circumstances where there had been a jurisdictional error. Errors of law can be jurisdictional or non-jurisdictional. There has been much debate about where to drawn the line between errors made within jurisdiction and errors made outside jurisdiction but it is clear that jurisdictional error includes circumstances where the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires). The difference between the two was discussed by the High Court in Craig v South Australia (1995) 184 CLR 163. In that case the High Court distinguished between inferior courts and tribunals exercising governmental powers. While it would not generally constitute a jurisdictional error for an inferior court to make errors such as failing to identify the relevant issues or asking the wrong question, those kinds of errors are likely to amount jurisdictional errors if made by a tribunal. 22 The Court of Appeal regarded the Equal Opportunity Tribunal (the predecessor to the Equal Opportunity Division of this Tribunal) as a court for the purposes of the distinction in Craig v South Australia: Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 at [146]). The Court of Appeal said that, "The task of the Tribunal, acting within jurisdiction, was similar to the ordinary jurisdiction of a court of law as described in Craig 184 CLR, at p179-p180. There, the High Court said: 184 CLR, at p179-p180. ...the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. 23 More recently, the Court of Appeal decided that the Tribunal has many characteristics of a court that answer statutory provisions relating to "courts". However the Court held that the Tribunal is not a "court of a state" for constitutional purposes: Trust Company of Australia Limited (Trading As Stockland Property Management) v Skiwing Pty Ltd (Trading As Café Tiffany's) [2006] NSWCA 185 at [29]. 24 In addition to the distinction between inferior courts and tribunals exercising governmental power there are other factors which are relevant when determining whether a jurisdictional or non-jurisdictional error has been made. Aronson et al list the following factors in Judicial Review of Administrative Action, 3rd ed Lawbook Co 2004 at p 216: "the gravity of the error, whether it related to a core or peripheral duty of the respondent, whether it related to a law applying specifically to the body or tribunal in question. . ." 25 As well as having authority to decide questions of law, the Appeal Panel has power to decide whether an error of law has been made: ADT Act, s 114. We accept that the Tribunal exercises what may be regarded as "governmental powers" from time to time, however in our view the Tribunal as a whole fits more comfortably within the category of an inferior court for the purposes of the distinction in Craig. Consequently, any error that it may have made is less likely to amount to a jurisdictional error. As it transpires, none of the reasons advanced by Mr McGuirk as justifying the Appeal Panel re-opening its decision amount to a jurisdictional or a non-jurisdictional error of law. 26 In addition to the distinction between inferior courts and tribunals exercising governmental power there are other factors which are relevant when determining whether a jurisdictional or non-jurisdictional error has been made. Aronson et al list the following factors in Judicial Review of Administrative Action, 3rd ed Lawbook Co 2004 at p 216: "the gravity of the error, whether it related to a core or peripheral duty of the respondent, whether it related to a law applying specifically to the body or tribunal in question. . ." 27 Failure to consider application to refer the Ombudsman's conduct to the relevant Minister pursuant to s 58 of the FOI Act. The first alleged error made by the Tribunal which Mr McGuirk said justified the Appeal Panel re-opening the decision was that it failed to consider his application to refer the Ombudsman's conduct to the relevant Minister. Section 58 of the FOI Act provides that: If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 28 Mr McGuirk did not submit to the Appeal Panel in his Notice of Appeal that the Tribunal had made an error of law by failing to refer the conduct of an officer of the Ombudsman to the relevant Minister. Consequently, it cannot have been an error of law, either within or outside jurisdiction, for the Appeal Panel to fail to address that question. 29 Application to disqualify for bias. Mr McGuirk's second reason for requesting that the Appeal Panel re-open its decision was that it had failed to consider two applications he had made in correspondence with the Tribunal for Magistrate Hennessy to disqualify herself from hearing the appeal. On 15 February 2008, the Tribunal wrote to Mr McGuirk advising him of the following direction: If the applicant wants to make an application for Ms Hennessy to disqualify herself he should do so and the issue will be determined at the hearing on 14 March 2008 30 Mr McGuirk took no further action after receiving that letter and did not attend the hearing. Given that Mr McGuirk took no further action, the fact that the Appeal Panel failed to determine that matter does not amount to an error of law either within or outside jurisdiction. 31 Questions of law in notice of appeal. The third alleged error made by the Tribunal which Mr McGuirk said justified the Appeal Panel re-opening the decision was that it failed to determine the questions of law in the Notice of Appeal. Mr McGuirk submitted that there was no need for him to attend the Appeal Panel hearing and that the Panel had a duty to independently examine the decision of the Tribunal and identify any error it may have made. Ms Morgan said that the Appeal Panel attempted to understand Mr McGuirk's grounds of appeal but was unable to do so and was correct to reject them. 32 There is authority for the proposition that appellate courts have a duty to assist self represented appellants to identify errors which have not been articulated: Barghouthi v Transfield Pty Ltd [2002] FCA 666 and XYZ v State Trustees Limited & Anor [2006] VSC 444 at [43]. There is no authority of which we are aware for the proposition put by Mr McGuirk that the Appeal Panel has a duty, in the absence of the appellant, to independently examine the Tribunal's decision and identify any error it may have made. Nor is it incumbent on the Appeal Panel to attempt to respond to grounds of appeal expressed in short form in circumstances where the appellant has chosen not to provide written or oral submissions explaining those grounds. A failure to independently examine the decision of the Tribunal and identify any possible error is not itself an error of law, jurisdictional or otherwise. 33 Procedural fairness. Finally, Mr McGuirk said that the Appeal Panel's decision should be re-opened because he was not given an opportunity to respond to the respondent's application for costs. The Tribunal is bound by the rules of procedural fairness: ADT Act, s 73(4). We must "take such measures as are reasonably practicable to ensure that the parties . . .have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings": ADT Act s 73(4)(c)." In Bhardwaj, the Immigration Review Tribunal (IRT) had conducted a review of a decision in the mistaken belief that the applicant had chosen not to attend. In fact Mr Bhardwaj's agent had sent a facsimile to the IRT advising that Mr Bhardwaj was ill and seeking another hearing date. The High Court found that the decision that the IRT subsequently made was procedurally unfair as well as lacking in jurisdiction. In Telstra Corp Ltd v Barrow (1994) 19 AAR 323, the Federal Court (Carr J) held that a decision of the AAT to make a costs order in favour of Mr Barrow without hearing from either party constituted a breach of procedural fairness. 34 Both these cases can be distinguished from the facts in this case. Mr McGuirk was given adequate notice of the hearing. He did not provide written submissions in support of his appeal and did not attend the hearing. He did not advise either the Ombudsman or the Tribunal of his intentions. He said that he chose not to attend the hearing and was not obliged to do so. 35 The Ombudsman attended the hearing to defend the appeal. The hearing involved not only the determination of Mr McGuirk's appeal but also the determination of an application for costs by the Ombudsman. Had Mr McGuirk attended the hearing he would have had an opportunity to be heard in relation to both those matters. He failed to avail himself of that opportunity and has offered no reasonable excuse for his non-attendance. In those circumstances, there has been no breach of procedural fairness and the Appeal Panel made no error of law, jurisdictional or otherwise, in determining those matters in his absence. Order The application to re-open the Appeal Panel's decision in McGuirk v New South Wales Ombudsman [2008] NSWADTAP 20 is refused.

McGuirk v New South Wales Ombudsman

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