McGuirk v Vice-Chancellor, University of New South Wales

CATCHWORDS: Appeal - admissibility of evidence - whether "planning meeting" improperly characterised as "preliminary conference" as provided for by s 74 of ADT Act - discussion of directions hearings, planning meetings and preliminary conferences - bias and procedural fairness.

DECISION UNDER APPEAL: University of New South Wales v. Curtin [2006] NSWADT 271

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1999

Kondos & Anor v. Citadin Pty Ltd [2003] ADTAP 7 McGuirk v. Vice Chancellor, University of New South Wales [2007] NSWADTAP 22 McGuirk v. University of New South Wales [2008] NSWADT 74 McKenzie v. McKenzie [1970] 3 All ER 1034 Livesey v. New South Wales Bar Association (1983) 151 CLR 288 Ebner v. Official Trustee (2000) 205 CLR 337 Watson v. Watson [2001] FamCA 1470 CASES CITED: Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 Onus v. Alcoa of Australia Ltd (1981) 149 CLR 27 McGuirk v NSW Ombudsman [2008] NSWCA 357 DF Lyons & Ors v. Commonwealth Bank of Australia Ltd (1991) 100 ALR 468 at 476 Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 Haines v. Leves (1987) 8 NSWLR 422 Curtin v. Vice Chancellor, University of New South Wales [2005] NSWADT 186 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223

APPELLANT In person REPRESENTATION: RESPONDENT P Singleton Second respondent in person

ORDERS: 1. Appeal dismissed 2. Parties are to file and serve any submissions on the isuue of costs by 13 July 2009.

1 Michael McGuirk ("Mr McGuirk" or "the appellant") appealed, by filing a Notice of Appeal on 1 September 2006, from orders made against him and Mr Curtin, the second respondent, in proceedings no 053430 in which the President of the ADT, Judge O'Connor, made the following orders:- a)The Tribunal orders Mr Curtin and Mr McGuirk to pay the respondent's costs of the proceedings held on 26 June 2006. Failing agreement as to the amount of those costs, they are to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 ("the costs order"); b)The Tribunal does not permit Mr Curtin to have Mr McGuirk assist him in these proceedings on a McKenzie friend basis ("the McKenzie friend order").

2 The second respondent does not join the appellant in appealing from either the costs order or from the McKenzie friend order.

3 By his Further Amended Notice of Appeal, filed on 3 August 2008, the appellant sought to appeal from both orders in the decision on points of law, characterised by the appellant in his Further Amended Notice of Appeal as:- a) a failure by the Tribunal below to characterise a "planning meeting" as a "preliminary conference" for the purposes of s 74 of the Administrative Decisions Tribunal Act ("the Act") and consequent failures properly to construe ss 74 and 75 of that Act (Part A of the Attachment to the Further Amended Notice of Appeal ("the Attachment")); b) a denial of procedural fairness by reason of the conduct of the President at the Planning Meeting and Directions Hearing in question (Part B point 9 of the Attachment); c) a denial of procedural fairness by reason of the President failing to disqualify himself from the hearing when asked to do so (Part B point 10 of the Attachment); d) an appeal from the McKenzie friend order, characterised as a denial of procedural fairness, in not allowing the appellant to appear as the second respondent's McKenzie Friend (Part C of the Attachment); e) "Errors of law closely related to the Denial of Procedural Fairness to Mr McGuirk and to Mr Curtin" (Part D of the Attachment); f) "Findings by the President without a proper basis in evidence" (Part E of the Attachment); g) "General Law" which includes allegations of improper purpose, reliance by the President on a decision of the Appeal Panel in Kondos & Anor v. Citadin Pty Ltd [2003] ADTAP 7 and other grounds referring to the McKenzie friend order (Part F of the Attachment); and h) "Wednesbury Unreasonableness" (Part G of the Attachment).

4 In support of the Further Amended Notice of Appeal, the appellant filed Exhibit A, described as a "Statement of Evidence" consisting of over 330 pages of statements by the appellant about the dispute which gave rise to the costs order and articles extracted from various publications including one from the Administrative Review Council Information Office entitled "A Guide to Standards of Conduct for Tribunal Members".

5 The University of New South Wales ("the University" or "the respondent") relied on a Notice of Reply to the Further Amended Notice of Appeal filed on 5 October 2008, submissions of the same date and a schedule of objections to evidence.

Other orders made in these proceedings 6 On 7 March 2007, Judge Karpin made a preliminary decision on jurisdiction (McGuirk v. Vice Chancellor, University of New South Wales [2007] NSWADTAP 22) in which her Honour found that the Appeal Panel had jurisdiction to hear the appeal, being a "review of a reviewable decision" under s 67(4) and thus an appellable decision under s 112(1). Her Honour also found that there was no obligation on the Tribunal to refer the matter to the Supreme Court.

7 On 21 November 2008 Ms Needham SC, Deputy President and presiding member of this Appeal Panel, gave a decision on the papers:- a) refusing leave to issue summonses to give evidence to:- i. Judge O'Connor; ii. Judge O'Connor's associate, Ms Watson; iii. Ms Gibson, Head of Policy Management at the University; iv. Ms Toomey, former University Solicitor; and v. the second respondent. b) refusing to disqualify herself. Those reasons for decision are published as McGuirk v. University of New South Wales [2008] NSWADT 74. 8 The matter was heard before the Appeal Panel constituted by Ms Needham SC, Mr Handley and Ms Antonios on 27 November 2008.

9 A preliminary ruling was given at the outset, after hearing argument, on the question of whether Mr McGuirk had standing to appeal on grounds 11, 12, 18, 20, 23, 24 and 29. Those grounds were struck out for want of standing. The reasons for that decision are set out below (see par [19] and following).

The decision of Judge O'Connor 10 A short outline of the manner in which this appeal arose is necessary.

11 Mr Curtin, the second respondent, was the applicant for documents under the Freedom of Information Act 1989 ("FOI Act"). Those proceedings were listed for a planning meeting before Judge O'Connor on 30 March 2006. Mr Curtin indicated on that occasion that he wished to have Mr McGuirk assist him in the FOI proceedings on a McKenzie Friend basis (see McKenzie v. McKenzie [1970] 3 All ER 1034). The decision on that point was reserved.

12 The matter came before Judge O'Connor for a further planning meeting on 1 June 2006. Mr McGuirk attended at the planning meeting. At that meeting, Mr McGuirk sought to address Judge O'Connor. At pars [7] and [8] of the decision under appeal, his Honour described the events as follows:- "[7] Ms Toomey ... expressed concern over [the use of a confidential report]. Mr McGuirk interrupted Ms Toomey's presentation to correct what he saw as misleading statements. Ms Toomey objected to Mr McGuirk speaking. I asked him to desist. I indicated that he did not have any right to speak. He refused to desist. I directed that he leave the room. He refused to do so. Mr McGuirk was behaving in a very heated way. [8] I formed the view that it would have been impossible to continue to conduct the proceedings in a satisfactory way and that there was a high likelihood of further disruption. Consequently, I terminated the proceedings. At this point, I indicated to Mr McGuirk that I regarded his conduct as reprehensible. I also indicated to the respondent that it was open to it to make a costs application".

13 The matter was listed for a directions hearing on 26 June 2006. The matter was by way of directions hearing so, inter alia, a transcription service could be used. Mr Singleton, counsel for the University, made an application on behalf of his client for its costs of the planning meeting of 1 June 2006 and submitted that the Tribunal could make costs orders against persons not parties to the proceedings - s 88 of the Act, Kondos & anor v. Citadin Pty Ltd [2003] NSWADTAP 7.

14 Judge O'Connor set out the issues on the costs argument and then dealt with his refusal of the application to disqualify himself. He set out the nature of the "personal association" relied upon by Mr McGuirk as a ground for disqualification. In short, (and as set out in par [24]), Judge O'Connor and Mr McGuirk were contemporaries for two years in 1969 and 1970 at Newman College, University of Melbourne. Later, in the early 1990s and in 2003, they socialised at the same occasions due to their mutual friendship with a family from Melbourne during their visits to Sydney. Judge O'Connor held that, on the tests in Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at 293-4 and Ebner v. Official Trustee (2000) 205 CLR 337 at [6], he did not consider that a "fair-minded lay observer fully informed of the objective facts might reasonably apprehend that I would not bring an impartial and unprejudiced mind to the resolution of the questions I am now called upon to decide" (at [25]).

15 His Honour characterised his indication, at the planning meeting, that it would be open to the respondent to make an application for costs against Mr McGuirk, as a provisional view only, and not indicating any pre-judgment in any way (at [30] and [31]).

16 His Honour then went on to reject the application to disqualify himself.

17 In this decision, his Honour also dealt with the reserved McKenzie friend application. He cited Watson v. Watson [2001] FamCA 1470 per Lindenmayer J that a McKenzie friend is a person who is "of assistance to the litigant in presenting his or her case to the Court, provided that that person does not disrupt the proper conduct of the proceedings" (see par [41]). That decision, and others dealing with McKenzie friends, note that a person so appointed may not act as an advocate in the proceedings.

18 The decision examined both the provisions of the Act dealing with agents, and the cases dealt with in the decision as to the role of McKenzie friend. His Honour determined that the appointment of a McKenzie friend was to assist (in this case) the Tribunal and the person assisted, and that "there could be no objection to Mr Curtin or any litigant in person having the assistance of a person who conducted himself or herself in a quiet and unobtrusive way and had a detached relationship to the issues in controversy and to the other party to the proceedings" (see par [57]). His Honour found (at pars [58] and [59]) that Mr McGuirk was unlikely to be such a person.

Decision on the appeal from the McKenzie Friend order 19 As noted above (see par [9]), the Appeal Panel held during the hearing of the appeal that the appellant had no standing to appeal from the McKenzie friend. Preliminary reasons were given for that decision (see [T]24:32 ff) and those reasons are elaborated upon here.

20 Section 113 of the Act provides:- 113 Right to appeal against appealable 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. ... 21 The appellant was not a party to the original proceedings. Judge Karpin's decision of 26 April 2007 dealt with the question of jurisdiction of the Appeal Panel to hear the appeal as constituted by the original Notice Of Appeal filed on 1 September 2006. In that decision, her Honour noted the University's contention that s 113(1) of the Act "raise[d] an issue as to whether the appellant is "a party to proceedings in which an appealable decision of the Tribunal is made" in relation to the McKenzie friend application (see par [16]). Her Honour went on to say that "For present purposes, the matter falling for determination is whether or not the appellant has standing to appeal against the costs order made by President O'Connor" (see par [22]). The question of the appeal from the McKenzie friend order was not pursued in that decision. 22 It is notable that the original Notice of Appeal focussed much less on the McKenzie friend issue than did the Further Amended Notice of Appeal which forms the basis of the appeal as heard.

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).

25 The manner in which Mr McGuirk became able to engage the jurisdiction of the Tribunal was by Judge O'Connor exercising the power in s 88 of the Act to order costs against a non-party. Judge Karpin's preliminary decision on jurisdiction, while it considered the McKenzie friend order in passing, was focussed on the costs order and the effect on Mr McGuirk which a costs order had on a non-party. Mr McGuirk was able to appeal from the costs order because it affected him.

26 The McKenzie friend appeal, if it were to be brought at all, would more properly be brought by Mr Curtin. The denial of the appointment of Mr McGuirk as a McKenzie friend was a decision affecting Mr Curtin's presentation of his case, and was not a decision affecting any right in Mr McGuirk to assist Mr Curtin.

27 The University, in reply, referred to the well-known line of cases such as Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 and Onus v. Alcoa of Australia Ltd (1981) 149 CLR 27 (each of which were recently cited by the Court of Appeal in McGuirk v NSW Ombudsman [2008] NSWCA 357) and submitted that the requirements of standing were not just personal interest or curiosity, but a proper interest in the proceedings granted either by statute (here, by s 67 and s 113(1)) or by something outside the general level of interest or curiosity such as the impact on Mr McGuirk's finances, in relation to the costs order.

28 A further consideration put by the University was that if Mr McGuirk had standing, what relief could be granted? The proceedings are over, and Mr Curtin has shown no interest in having Mr McGuirk appointed as his McKenzie friend at this stage. Indeed, Mr Curtin said during the hearing:- "On ... the McKenzie friend issue I have no particular interestin it because it's not serving a purpose of getting the documents I was seeking."

29 For those reasons, the Appeal Panel holds that Mr McGuirk has no standing to appeal from the McKenzie friend order of Judge O'Connor and accordingly paragraphs 11, 12, 18, 20, 23, 24 and 29 of the Further Amended Notice of Appeal are dismissed.

30 Should we be wrong on this, we note that the McKenzie friend order was an interlocutory decision of the Tribunal and thus leave to appeal from it would be required (see s 113(2A) of the Act). That leave was not consented to by the University.

31 The Appeal Panel is of the view that it would not be appropriate to grant leave to appeal from the McKenzie friend orders, in the light of Mr Curtin's attitude to the appointment, and the lack of any appropriate relief that could be granted were Mr McGuirk be successful in that part of the appeal.

Evidence of the appellant on this appeal 32 Mr McGuirk did not seek leave of the Appeal Panel to extend the appeal to the merits of the decision (see s 113(2)(b) of the Act) but restricted himself to an appeal on questions of law (see s 113(2)(a) of the Act). The original Notice of Appeal sought an extension to the merits but the Further Amended Notice of Appeal did not. Mr McGuirk withdrew his application to extend to the merits on 6 June 2007 at a directions hearing and confirmed that position at [T] 28:20-20.

33 Despite this, Mr McGuirk sought to call oral evidence. He had been directed to file "copies of documents not filed in proceedings below" by 29 October 2007, a date later extended to 25 January 2008. Exhibit A was filed on 8 February 2008. On 2 April 2008, he was directed to file and serve a schedule which "states to which ground/s of appeal each paragraph of that material and each annexure thereto relates by 2 May 2008".

34 The evidence Mr McGuirk sought to call on the issue of procedural fairness consisted of:- a)oral evidence from Mr Curtin as to the conduct of the directions hearing at which the costs order was made (this was allowed and can be found at [T]69-97); b)oral evidence of a Mr Saggers, the President of the FOI Association of Australia which would, it was said, goes to the tendency of Judge O'Connor to "consistently disadvantage applicants" (see [T]32:23-4). This evidence was not permitted to be called. The reasons for the rejection of the proposed evidence are as follows;- i. firstly, and most importantly, the Appeal Panel considered that the evidence sought to be called was not relevant to the question of whether, on the day of the directions hearing, Judge O'Connor did in fact deny the appellant procedural fairness. It was not contended to the Appeal Panel that Mr Saggers was present on that day. ii. The evidence sought to be led from Mr Saggers was categorised as "tendency" evidence. That evidence was rejected for reasons analogous to the provisions of s 97(1) of the Evidence Act (NSW) which provides:- 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

No notice of Mr Saggers' evidence was provided to the University prior to the hearing in any way which would enable the University fairly to meet that evidence. Mr McGuirk submitted that he did not believe the directions of the Tribunal applied to Mr Saggers' evidence, because "Mr Saggers was not a document" (see [T] 31). Notwithstanding the directions of the Tribunal referred to submissions and "documents", fairness to the University dictated that any evidence sought to be called should be notified to it. Further, it was the view of the Appeal Panel that evidence consisting of a summary of the conduct of Judge O'Connor in different cases, as observed by a non-party, would be of no real use in determining whether the grounds alleged by the appellant of a breach of procedural fairness were made out. iii Justice Gummow said, in DF Lyons & Ors v. Commonwealth Bank of Australia Ltd (1991) 100 ALR 468 at 476:- "But the first question to be asked when it is sought to draw any particular case within this universe of discourse is to ask when "facts" are to be treated as "similar"." The Appeal Panel is of the view that the proposed evidence by Mr Saggers cannot be seen as "similar fact" evidence in the true meaning of the term. It is more properly tendency evidence, and a mere personal propensity to act in a particular way does not fall within the kinds of tendency evidence or similar fact evidence admissible in civil cases; for example, the making of similar representations to lessees of premises in shopping centres in Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 at 30-1 per Northrop J. c) a proposal to call Judge O'Connor. The appellant had, on 21 November 2008, been refused leave to summons to Judge O'Connor to give evidence and the reasons are, as noted above, published as [2008] NSWADT 74.

d) a proposal to call Ms Watson, Judge O'Connor's associate. Again, no leave was granted for the issuing of a summons and the reasons are set out in [2008] NSWADT 74.

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.

38 In addition to his oral submissions, Mr Curtin's evidence, and Exhibit A, Mr McGuirk also sought to tender a Power Point presentation which was produced on the day of hearing , without being provided to the University in accordance with the directions for service of evidence. Extensive discussion was had during the hearing (see transcript pp 50-55; and later from p 113) as to whether reliance ought to be allowed on these submissions; eventually they were relied on by the appellant on the terms set out below.

39 Leave was given to each of the parties to make further submissions in relation to the Power Point submissions. No submissions complying with the order were received. Mr McGuirk sought to make further submissions by way of "open letter" dated 4 January 2009 but as no submissions had been received by the University, and the leave granted to him was specifically only to reply to the University's submissions, that material was rejected.

40 The letter of 4 January 2009 also sought to re-open the case before the Appeal Panel. That application was rejected.

41 As for the Power Point submissions, where relevant, they will be dealt with below. It should be said that a great deal of it is irrelevant, covering Mr McGuirk's thesis of FOI policy and implementation, and asks the Tribunal to take judicial notice of "the fact that "freedom of information" as a policy concept has been a dismal failure in the State of New South Wales", citing as background for that articles written by a journalist for the Sydney Morning Herald. The submission seeks to re-open the decision as to whether Ms Needham should have disqualified herself ([2008] NSWADTAP 74]), sets out a history of President O'Connor's decision making history and Mr Curtin's history of FOI applications to the University, and finishes with observations on the role of the Tribunal, the issue of relevance, and the principle established in Jones v. Dunkel.

42 The submission, reflecting Mr McGuirk's oral submissions, makes considerable reference to the Dickens novel "Bleak House".

The issues in the appeal 43 As noted above, the issues raised in the Further Amended Notice of Appeal were, essentially:- a) a failure by the Tribunal below to characterise the "planning meeting" as a "preliminary conference" for the purposes of s 74 of the Administrative Decisions Tribunal Act ("the Act") and consequent failures properly to construe ss 74 and 75 of that Act; b)failure by the President to remove himself for bias; c)general grounds entitled "errors of law", "general law" and "Wednesbury unreasonableness"; and d)"Findings by the President without a proper basis in evidence"

Preliminary Conference/Planning Meeting 45 Grounds 1-10 of the Further Amended Notice of Appeal deal with the issue of whether the hearing of 1 June 2006 was a planning meeting, a preliminary conference, or some other kind of hearing. Mr McGuirk contends that it was a "preliminary conference" within the meaning of s 74 of the Act.

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.

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.

50 There are no decisions on the difference between a Planning Meeting and a preliminary conference, or, for that matter, on a directions hearing. The term "directions hearing" has a fairly well-understood meaning and generally refers to a hearing, held prior to the final hearing, in order to organise pre-hearing procedures, hear motions, make directions, and give the matter a hearing date.

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."

52 As is clear from the terms of the Practice Note, a preliminary conference will be ordered at a planning meeting, thus indicating that a planning meeting is not a preliminary conference (or, as the Practice Note refers to it, a "formal preliminary conference"). Section 74, and the Practice Note, paint a preliminary conference as being a kind of mediation or settlement conference, which impression is bolstered by the protections given against matters occurring at the preliminary conference in subs-s 74(4)(a). The procedure described in s 74 appears to be focused on achieving a settlement. A directions hearing is a hearing at which orders or directions are made for the conduct of the case. A planning meeting is a less formal meeting between the parties and the Tribunal member allocated to hear the matter held to identify and discuss the issue(s) in dispute and how best to progress the matter towards resolution. At that meeting, the member may also set a timetable for the filing and service of relevant documents such as evidence and submissions. There is nothing in what happened on 1 June 2006 to indicate that the event should properly have been characterised a "preliminary conference" within the meaning of s 74.

53 In any event, there is no indication from the appellant that he sought that the hearing be designated a "preliminary conference" or that he sought to invoke the section's protections at any time prior to filing the various Notices of Appeal.

54 Mr McGuirk also sought to rely on s 75, which requires the Tribunal to conduct its procedures in public. This ground relies on the meeting being characterised as a "preliminary conference" and, as we have found that the planning meeting was not a preliminary conference, it is not made out.

55 In our view there is no substance to the grounds of appeal based upon ss 73-5.

Denial of procedural fairness and bias 56 These two areas are very closely aligned in Mr McGuirk's submissions, and will be dealt with together. They cover grounds 9 and 10 and, to an extent, ground 14 of the Further Amended Notice of Appeal.

57 Mr McGuirk says that the President of the Tribunal, by his conduct at the Planning Meeting, evidenced bias (actual and/or apprehended) and failed to disqualify himself when he should have done so.

58 From the outset, Mr McGuirk appeared to take the view that a refusal by a judicial member to disqualify him or herself is prima facie evidence of bias by that judicial member. In his submissions, in par [141], he said:- "At the proceedings on 26 June 2006, Mr McGuirk made it unmistakeably clear that he was of the view that, were the Tribunal to entertain the application for costs made by [counsel for the University] Mr Singleton rather than striking it out on the basis that it was vexatious and/or oppressive and/or an abuse of the process of the Tribunal, that application would have to be heard and determined by a member of the Tribunal other than Judge O'Connor".

59 That view is demonstrably incorrect. The test is whether a "fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (Ebner v. The Official Trustee in Bankruptcy (2000) 205 CLR 337, per Gleeson CJ, McHugh Gummow and Hayne JJ and cited by the appellant).

60 It appears from the various accounts of the planning meeting (including that of Mr Curtin), at which, due to its informality, no transcript or recording was taken, that tempers were high. Judge O'Connor said, in the decision [2006] NSWADT 271, that he regarded Mr McGuirk's behaviour as "reprehensible" (par [8]) and that the planning meeting needed to be concluded "peremptorily" (par [12]).

61 Further, Mr McGuirk indicates that the description set out in paragraphs [22] to [24] of the decision is "incorrect and misleading". He tendered two photographs of picnics at which he and Judge O'Connor attended with their families.

62 Mr McGuirk's depiction of the relationship, as either closer or more frequent than Judge O'Connor indicated in his decision, is not one which indicates that Judge O'Connor would, in the eyes of an objective lay person, be unable to make decisions regarding matters which he observed as to Mr McGuirk's behaviour. Generally speaking, it would be for the University to take issue with a friendly relationship between a party and a judicial officer; it did not. It would be reasonable to assume that a judicial officer who had a long, and friendly relationship with a person would chose not to sit on that person's matter, so as to avoid questions of bias; however, if that person came into the jurisdiction of the judicial officer in the way in which Mr McGuirk came into Judge O'Connor's, that friendly relationship should not prevent the exercise of powers in relation to that person.

63 A further incidence of alleged bias is set out in Mr McGuirk's submissions arising out of close connections which he says exist between Judge O'Connor and:- a the Ombudsman's Office b the University; and c the Crown Solicitor (who once employed advisors of the University). 64 It is fair to say that none of the above, even if true, would lead a lay person to assume that Judge O'Connor was biased in making a costs order against Mr McGuirk for conduct which led to a planning meeting being aborted.,.

65 Mr McGuirk also indicated that he relied upon a statement by Judge O'Connor in the ADT Annual Report, where his Honour said, in relation to costs awards against querulent litigants:- "It might be thought that an increased use of the costs powers could deal with the problem. That would only be likely to have marginal impact. Some litigants have little means to meet a costs award, others would simply transfer the same behaviour to the contestation of the costs order".

66 The quoted paragraph is said by Mr McGuirk to show the President's "considerable disappointment" that a strategy of making costs orders against querulent litigants was ineffective. We do not agree. The passage demonstrates that the Judge does not think that querulent litigants should be given costs orders in order to manage difficult or inconvenient behaviour. It shows no demonstrated tendency by his Honour to issue costs orders for purposes other than those provided for by the Act.

67 There is nothing in the evidence which tends to show that his Honour was actually, or could be apprehended to be, biased against Mr McGuirk in making the costs order on 26 June 2006. Ground of Appeal no 14 falls within this reasoning as well.

Various grounds as set out in paras 13, 15-17, 19 68 The appellant alleges, in these grounds, that the President:- a)failed to consider a pattern of conduct by the University which "involved the active suppression of documents and corruption"; b)failed to consider Mr McGuirk's application for costs against the University and failed to provide adequate reasons; c)wrongly found that Mr Curtin was vicariously liable for Mr McGuirk's behaviour leading to costs.

69 The first of these grounds is based on a submission that the Tribunal must take into account material sufficient to allow it to determine "all relevant facts". It is alleged by the appellant that this was a relevant factor to the determination of the costs question.

70 There is no evidence upon which such a finding could be made, if, in fact, it were relevant. The alleged suppression and corruption is a recurring theme in the documentation provided by Mr McGuirk, but its relevance to whether his conduct justified the early termination of the planning meeting is non-existent.

71 As for the question of Mr McGuirk's application for costs, it was rejected. As there is no appeal on the merits, and no real ability to contest the factual issues underlying the costs order against Mr McGuirk as a consequence, it is difficult to see how, on the facts found by the President, any application for costs could be successful against the University. In any event, Mr McGuirk was appearing in person, and was not a party to the applications which were the subject of the costs order. The application for Mr McGuirk's costs was characterised by the respondent as "a frivolous tit-for-tat response to the University's application" and it is difficult to see it in any other light. The reasons were brief and adequate, in the light of the seriousness and viability of the application.

72 As for ground 17 of the Further Amended Notice of Appeal, it is put on the basis of a finding by the President as to Mr McGuirk's other matters before the Tribunal being an adverse factor in the question of whether to award costs against him. We do not agree that paragraph [59] of the decision is such a finding. It is more closely aligned with the McKenzie Friend application and so is of tenuous relevance to the costs order and probably it should have been included in the parts struck out of the Notice of Appeal. In any event, there is no basis for this ground of Appeal.

73 Paragraph 39 of the decision is relied upon as the basis for ground 19. It is a ground which could only be brought by Mr Curtin, as it relates to whether Mr Curtin was "responsible" for the behaviour of Mr McGuirk. The appellant's submissions call the finding "astonishing". Yet the fact is that Mr McGuirk was only present with Mr Curtin's permission, the planning meeting being held not in a traditional court-style room of the Tribunal but in a meeting room. The respondent points to a lack of standing in Mr McGuirk to complain of this comment, and with that we agree.

Findings made without a proper basis in evidence 74 Ground 21 of the Further Amended Notice of Appeal sets out a list of findings which were "in conflict with the evidence and/or facts readily available to the Tribunal, or which were not reasonably supported on the evidence".

75 Mr McGuirk provided his version of the conduct of the hearing, but did not specify the difficulties with the factual findings of the President. Mr Curtin also gave evidence about what occurred. He characterised the exchange as "a shouting match" and agreed that things got "heated". As the President was a participant in the matter he was entitled to draw on his own recollections of the event, as any judicial officer might when considering the imposition of a costs order for conduct in his or her courtroom.

76 It is important to recall that this is an appeal on a matter of law. In order to succeed, Mr McGuirk must establish an error of law. Merely saying that the facts found were "in conflict with" or "not reasonably supported by" the evidence is insufficient, on its face, to meet the threshold established by Haines v. Leves (1987) 8 NSWLR 422 at 469, which establishes that facts found for which there is no evidence (and thus, an error of law) differ from facts found for which there is insufficient evidence, or which are against the weight of the evidence.

77 Given the nature of the items particularised in ground 21, the agreement of Mr Curtin that at least some of the facts occurred as found, and the fact that there is no leave to extend to the merits of this appeal, there is no basis for this ground of appeal to succeed.

General Law 78 Ground 25 is the only ground left under this heading. It reads:- "The reliance by the President on the decision of the Appeal Panel in Kondos & anor v. Citadin Pty Ltd [2003] NSW ADTAP 7 for the proposition that the Tribunal may award costs to a person who is not party to the proceedings".

79 Kondos was an appeal against a decision of the Tribunal to award costs against a third party, who appeared as advocate or agent in retail lease proceedings. The President's decision cites Kondos as follows, after setting out the provisions of s 88, which deals with costs:- "14 The Tribunal may order costs against a person who is not a party to proceedings: see Kondos & Anor v Citadin Pty Limited [2003] NSWADTAP 7. The expression 'special circumstances' is a wide one. There can be no doubt that conduct which is disruptive of proceedings, such that a court or tribunal is forced to discontinue them, is conduct for which an innocent party might reasonably expect to be compensated in respect of their costs."

80 Mr McGuirk says that:- a) the facts in Kondos differ from those because the costs in that case were ordered against a representative; b) policy considerations are in favour of persons having assistance during hearings, whether the assistance be from a legally qualified person or otherwise (see comments by the Appeal Panel in Curtin v. Vice Chancellor, University of New South Wales [2005] NSWADT 186 at [2]).

81 The proposition that costs may be awarded against a non-party in the ADT in proper cases cannot be in dispute. Kondos is plainly authority for that proposition; if that authority were not used, there were others which could have been. The section itself contemplates a range of persons who may be liable for costs: see s 88(2)(a). In any event, the factual differences between this case and that in Kondos are not such that that proposition is weakened in any way. There is nothing contrary to public policy in the comments made in Curtin [2005] which are contrary to the decision of the President under appeal.

Wednesbury Unreasonableness 82 In his final section of grounds of appeal, which are 26-28 (29 having been struck out), Mr McGuirk alleges that the finding that his conduct amounted to "misconduct" was so unreasonable that "the decision below was a nonsense". "Wednesbury unreasonableness", of course, gets its name from the case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, and refers to decisions which are so unreasonable that no decision-maker, acting reasonably, could have made it.

83 The appellant contends that the Appeal Panel should:- a) view the matter as one of common sense; and b) should impose the "correct and preferable" decision in lieu of that of the President.

84 In making those submissions, Mr McGuirk misunderstands the role of the Appeal Panel in hearing an appeal on a question of law - see Haines v. Leves at 469.

85 Given the facts of the case - which are not the subject of this appeal and which are those as found by the President - it is certainly not so unreasonable to order costs against Mr McGuirk, as a non-party, on the basis that his conduct disrupted the hearing, required the President to adjourn to another day, and thus requiring the University to incur costs which would otherwise not have been incurred.

86 That analysis is sufficient to dispose of these grounds of appeal. However, Ground 28 refers to the ordering of costs for the 26 June directions hearing, rather than the 1 June planning meeting.

87 In the Appeal Panel's view, the proper course was for costs to be ordered for the appearance which was unnecessary; as the directions hearing was only made necessary by the conduct of Mr McGuirk and the necessity to adjourn it due to his conduct. Accordingly, it was the second hearing which was made unnecessary and it is that hearing at which the University was represented by counsel, not unreasonably given that there was to be an application for costs.

Orders 88 As will appear from the above reasons, the appellant has been unsuccessful in all grounds of appeal and the appeal will be dismissed.

Costs 89 The University has indicated that it may wish to make application for its costs of the appeal. Further, Mr Singleton of counsel, who was once joined personally to this appeal, has requested that the reservation of costs made at that time be heard.

90 The Appeal Panel will hear argument on costs prior to 17 July 2009 in order to determine the applications before one of the members of the Appeal Panel becomes unavailable.

1. Appeal dismissed 2. Parties are to file and serve any submissions on the issue of costs by 13 July 2009.

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