McGuirk v Vice-Chancellor, University of New South Wales

McGuirk v Vice-Chancellor, University of New South Wales - [2001] FamCA 1470 - FamCA 2008 case summary — Zoe

[29]

23 Section 67 of the Act defines "parties" for various purposes. 67 Parties to proceedings before Tribunal (1) The parties to proceedings before the Tribunal for an original decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for an original decision, and (a1) if an order or other decision is sought from the Tribunal in respect of a person (other than the applicant) - the person in respect of whom the order or other decision is sought, and (b) if the Attorney General intervenes in the proceedings under section 69 - the Attorney General, and (c) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (d) any person specified by or under any enactment as a party to the proceedings. (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69 - the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings. ... (4) The Tribunal may, by order, make a person who is not a party to proceedings (other than proceedings on an internal appeal) a party to the proceedings if the Tribunal considers that the person ought to have been joined as a party or is a person whose joinder is necessary to the determination of all matters in dispute in the proceedings. 24 The matter turns on one of standing. Mr McGuirk does not fall within the various sub-categories of sub-s 67(2). He does not fall within par (a), as he is not, as of right, entitled to bring an appeal from the order refusing Mr Curtin, in Mr Curtin's application, the right to have a McKenzie friend. Paragraphs 67(2)(b) and (c) are not applicable. He has not been joined as a party in accordance with par (d) and sub-s (4).

[42]

35 Exhibit A is, as has been noted, a document of over 300 pages and there were some objections to it (served out of time). The document consists of an extensive statement of Mr McGuirk by way of further evidence. All but the first 33 paragraphs were objected to. Due to a lack of time, and convenience considerations, the balance of the document was admitted conditionally and subject to relevance, and if it were shown to be relevant and admissible during the course of the proceedings then the Appeal Panel would have regard to it. 36 In relation to the conditional admission of Exhibit A, the Appeal Panel now makes the following rulings (the letters at the beginning of each paragraph refer to the Part of the Statement which are given headings):- A: Relationship between appellant and Judge O'Connor (this part was not objected to on the basis that it could go to the bias ground, and is now admitted); B: "Scandals" at the University of New South Wales (objected to as a whole as irrelevant to the question of whether the costs order was warranted, and with individual objections to various paragraphs). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. C: Experience of the appellant at the University (parts are objected variously as being hearsay, conclusions, commentary and the whole objected to as irrelevant). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. D: Complaints made by the Appellant to the Ombudsman (objected to on various grounds but also due to relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. E: Private Prosecution for Breach of the Protected Disclosure Act (objected to on relevance, and also on the basis that the matters disclosed seek to go behind an acquittal). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. F: Investigation of the University by the Ombudsman (relevance and provenance of documents). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. G: FOI Applications and Review by the Tribunal (relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. H: Relationship between the appellant and Mr Peter Curtin (relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. I: directions hearing held on 26 June 2006 (relevance). This part could be relevant to the grounds of bias or procedural fairness and is admitted. However, annexures BT (a record of the documents handed up by the appellant at the directions hearing, but which was not itself handed up), Annexure BU (a letter to the NSW Ombudsman about the confidential nature of some reports), and BV (a letter from the NSW Ombudsman in response to BU) are rejected as not being relevant to the questions on this appeal. Annexure BW is admitted into evidence. J: the Decision of President O'Connor in Curtin (relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. K: Relationship between Appellant and the Ombudsman (relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. L: Relationship between the Appellant and Judge O'Connor (relevance). After hearing the entirety of the argument and the rest of the evidence, it is clear that this part is not relevant to the proceedings and is rejected. Were it indeed relevant, it should also be rejected on the basis that it mainly deals with matters happening long after the directions hearing and the order under review. 37 Where a section of Exhibit A is rejected or admitted, the rejection applies to the annexures except where otherwise stated.

[50]

46 Section 74 of the Act provides as follows:- "74 Preliminary conferences (1) The Tribunal may, before formally commencing to determine an application, confer informally with, or arrange for a member or assessor to confer informally with, the parties to the proceedings in a preliminary conference and make any determination with respect to the proceedings that is agreed to by the parties. (2) If proceedings are referred under this section to a member or an assessor and the parties agree to the determination of the member or assessor, the determination has effect as a decision of the Tribunal. (3) (Repealed) (4) If the proceedings are not determined under this section and proceed for a formal determination by the Tribunal: (a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree, and (b) any member or assessor who presided over a preliminary conference in respect of the proceedings may participate as a member of the Tribunal determining the proceedings, or as an assessor in those proceedings, unless: (i) a party to the preliminary conference objects to the member or assessor further participating in the proceedings, and (ii) the party demonstrates in that objection that the further participation of the member or assessor is likely to prejudice the party's case. (5) For the purposes of subsection (4) (b), a party objects to a member or assessor further participating in proceedings only if: (a) the objection is lodged with the Registrar within 14 days after the conclusion of the preliminary conference (or within such other period as may be prescribed by the rules of the Tribunal), and (b) the objection is in such form as may be prescribed by (or approved under) the rules of the Tribunal. (6) The President may direct that a preliminary conference is to be held under this section in the case of any applications made to the Tribunal of a kind specified in the direction." 47 The appellant contends that had the Planning Meeting be formally designated a "preliminary conference" in accordance with s 74 of the Act, then the protections in relation to statements made under s 74(4)(b) would apply to them. He says that had the planning meeting been properly designated as a "preliminary conference", then "words spoken and acts done at planning meetings ... "under the notice of the bench"" could not form the basis of a costs order.

[51]

48 Section 73 is also relevant. It provides as follows:- "73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it in any of the following circumstances: (i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate, (ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings, (iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and (h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure. (6) A judicial member may: (a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal." 49 Subs-s 73(60(a) empowers a judicial member to convene a directions hearing. The University contends that the planning meeting was a directions hearing, rather than a preliminary conference within the meaning of s 74, and, in any event, the Tribunal is not precluded from ordering costs in relation to a preliminary conference.

[53]

51 A "Planning Meeting" is not a creature of statute. A planning meeting is held in FOI and Privacy matters. The manner in which planning meetings are held is set out in the Tribunal's Practice Note no 1 which reads, in full:- This Practice Note is intended to introduce a greater level of case management into the initial assessment of applications for review of decisions made under the Freedom of Information Act 1989. From 1 February 2000 the Tribunal will implement new procedures to replace directions hearings as the method for initially dealing with FOI review applications. The term 'directions hearing' is replaced by the term 'planning meeting' in an attempt to give parties a clearer guide to the purpose of the first conference. The new procedures are also seen as providing a more practical environment for assessing the complexity of applications at an early stage, especially those where applicants appear without representation. Applications filed after that date will be dealt with as follows: 1. The Registrar will schedule a Planning Meeting before a Member. The Registrar will advise the applicant and the agency by letter of the details of the meeting. The letter will give an outline of the three options that will be considered for resolving the dispute: a) formal preliminary conference under s 74 of the Administrative Decisions Tribunal Act 1997 (the Act) b) mediation under Chapter 6, Part 4 of the Act c) direct referral to hearing. 2. At the planning meeting the Member will explore any possibilities for resolution of the dispute by one of the three options. 3. If formal preliminary conference and mediation are not suitable (or have been tried and failed), the Member will normally refer the dispute directly to a hearing. Directions will normally be based on the standard directions. Normally there will be no further requirement for attendance at the Tribunal by the parties until the date of hearing. Any further applications will be dealt with by telephone conference. 4. The current standard directions are available from the Registry."

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Judgment (93 paragraphs)

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