McGuirk v Vice-Chancellor, University of New South Wales & Anor [2002] NSWSC 1203 | Case summary

REASONS FOR DECISION 1 This is an interlocutory decision on the issue of jurisdiction. 2 The substantive proceedings involve a Notice of Appeal pursuant to section 112 of the Administrative Decisions Tribunal Act 1997, filed by the appellant on 1 September 2006. That appeal is against an order made by the President on 10 July 2006 in the following terms: 1. 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. (Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSWADT 271) 3 The appellant seeks leave to extend the appeal to the merits in addition to questions of law. 4 On 29 January 2007 the appellant filed submissions on the issue of jurisdiction. Those submissions are constituted by 111 numbered paragraphs in a 26-page document. The nub of the appellant's argument on the question of jurisdiction appears, however, at paragraph 70 of the submissions as follows: The member of the Tribunal appointed by the President to deal with these matters, Karpin ADCJ, is under an obligation at law to determine the following preliminary questions: 1. Does the Tribunal have the jurisdiction under its statute, and in accordance with common-law principles, to hear and determine the issues raised by Mr McGuirk in his "Notice of Appeal" filed with the Tribunal on 1 September 2006? 2. If not, is the Tribunal - as a matter of law in the proper exercise of the discretion conferred on it by the New South Wales Parliament - obliged to refer these matters to the Supreme Court of New South Wales for determination in the original and supervisory jurisdiction of that Court. 5 On 22 February 2007 the respondent filed submissions on the issue of jurisdiction. 6 On 7 March 2007 the submissions of each party were augmented by oral argument. 7 The substantive proceedings involve an appeal from the costs decision of the President (see paragraph 2 hereof). Mr Curtin has not lodged an appeal against that decision. The terms of the order make it clear that Mr Curtin and Mr McGuirk are jointly and severally liable for the respondent's costs. 8 The directions hearing, the subject matter of the costs order under appeal, was held in the course of proceedings, Curtin v Vice-Chancellor of the University of New South Wales [2006] NSWADT 271, an application by Mr Curtin pursuant to the Freedom of Information Act 1989, for a review of a reviewable decision taken by the respondent university. 9 On 1 June 2006 the parties attended a planning meeting presided over by the President. The appellant appeared as a "McKenzie friend" (McKenzie v McKenzie [1970] 3 All ER 1034) to assist Mr Curtin. 10 The President expressed the view that the appellant had interrupted proceedings to such an extent that it was not possible to continue the planning meeting. He accordingly ordered that on the next occasion the matter should be dealt with at a directions hearing. He also advised the parties that at the directions hearing he would entertain an application by the University for its costs of that day. 11 In his decision of the 11 July 2006, the President said: 7… Mr McGuirk interrupted Ms Toomey's presentation to correct what he saw to be 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. 12 The nub of the appellant's argument on the issue of jurisdiction is contained in paragraph 94 of his submissions: "The question, which is at the core of these submissions therefore arises: Does an Appeal Panel of the Tribunal have the necessary power (jurisdiction) to hear and determine an appeal from a decision of President O'Connor, when the essential question which must be decided by the Appeal Panel is whether the President has been guilty of actual bias, or, in the alternative, whether the conduct of the President would, in the mind of the hypothetical fair-minded lay observer, give rise to a reasonable apprehension of bias on his part?" 13 In essence, it is argued by the appellant that it is doubtful or questionable that the Appeal Panel of the Tribunal has the power to make a finding either of apprehended bias or of actual bias against the President of the Tribunal. The appellant's argument is summarised in paragraphs 106 to 109 of his submissions: 106. The question remains, however, whether it is open to an Appeal Panel of the Tribunal to make a finding of either apprehended bias, or of actual bias , against the President of the Tribunal 107. There is - not surprisingly - an absence of clear authority in regard to this question. Some guidance may however be taken from the decision of the Dunford J in The Ombudsman v Robert Koopman [2002] NSWSC 1203. 108. The issue before the Supreme Court in Koopman was whether an appeal by the NSW Ombudsman, against a decision of the Administrative Decisions Tribunal constituted by its President, O'Connor DCJ, should be heard by a single judge, or whether the matter should be referred to the Court of Appeal. Dunford J decided the question as follows: "9. There is power under s 51 of the Act, to permit the proceedings to remain in the Common Law Division, but having regard to the clear policy, which is apparent from s 48, although it was appropriate to allow the urgent interlocutory proceedings to be dealt with in this Division, it is, in my view, more appropriate that the final determination in the matter be left to the Court of Appeal. 10. I therefore order that the proceedings be removed into the Court of Appeal, …" 109. Based on the guidance provided by this decision of Dunford J, it is submitted that an Appeal Panel of the Tribunal does not have jurisdiction to hear and determine allegations of apprehended bias and/or actual bias made against the President of the Tribunal. Such allegations can only be determined at a minimum by the Supreme Court, and, preferably, by the Court of Appeal. 14 The relevant provisions of the Administrative Decisions Tribunal Act 1997 that confer jurisdiction on the Appeal Panel, may be found in sections 112 and 113 of the act: 112 Appealable decisions of the Tribunal (1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. 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. (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. 15 The decision presently under appeal, is clearly a "review of a reviewable decision," accordingly, it is an appealable decision, pursuant to section 112(1). 16 As counsel for the respondent pointed out, s 113(1) does, however, raise an issue as to whether the appellant is " A party to proceeding in which an appealable decision of the Tribunal is made", he having participated only to the extent of appearing as a "McKenzie friend" to Mr Curtin. 17 Section 67 of the Administrative Decisions Act 1997 deals with parties to proceedings before the Tribunal. Section 67(2) provides: (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. 18 Section 4 of the Act dealing with definitions, under "parties" merely refers back to s 67. 19 Section 67 (4) provides: 4) The Tribunal may, by order, make a person who is not a party to proceedings for: (a) an original decision, or (b) a review of a reviewable decision, or (c) an external appeal, a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal. 20 Thus, on the face of it, the statutory provisions do not contemplate the precise circumstances in which the appellant now stands. 21 It would be an extraordinarily anomalous situation, and, prima facie, a travesty of justice if, being subject to a costs order, the appellant had no right of appeal, and no standing before the Appeal Panel of the Tribunal, to prosecute that appeal, whereas Mr Curtin, has an indubitable right to such an appeal. 22 It is arguable that the appellant could pursue his rights in the Supreme Court. Indeed, he suggests in his submissions that some of the matters raised are within the jurisdiction of the Tribunal, but other issues are not. Those are matters that will fall to be dealt with in the substantive proceedings. 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. 23 There is merit in the submissions of counsel for the respondent, that the intention of s. 67 is not restrictive, but rather intended to make provision for, and confer rights upon those who should have access to the Tribunal. 24 Interpretation of the legislation should be approached, having regard to the purpose and function of the relevant legislation. A facultative approach should be adopted, where, to employ a restrictive interpretation, would result in injustice and unfairness, and be contrary to the spirit of the Act. It could not be thought to be a just result, if a person against whom a costs order had been made by the Tribunal, were not permitted to have that order reviewed by the Appeal Panel. 25 As already pointed out, a restrictive interpretation of the legislation, could result in a situation where Mr Curtin, as a party to the substantive application, had an entitlement to have the costs order made against him reviewed by the Appeal Panel, whilst Mr McGuirk, jointly and severally liable pursuant to the President's order, would not be entitled to have that order reviewed by the Appeal Panel. Such a result, would clearly be grossly unjust, and productive of a legal absurdity. 26 A facultative construction of the legislation must give rise to a right in the appellant to prosecute an appeal before the Appeal Panel. 27 Given the nature of the relevant legislation, it is difficult to contemplate that had Parliament had this scenario in mind, the legislation would have been drafted in such a manner as to exclude the appellant. A commonsense construction of s 67(2) leads to the conclusion that a person against whom a costs order has been made, thereby becomes a party to proceedings, and, accordingly, is entitled to bring an appeal pursuant to s 113. 28 Turning now to the appellant's submission that this matter should more appropriately be dealt with in the Supreme Court, indeed, in the Court of Appeal: the appellant does not advance any authority of relevance, for that proposition. The matter of Koopman is not authority for the proposition that the Tribunal should refer the matter to the Supreme Court. That was a case in which the applicant, the Ombudsman, sought declaratory and prerogative relief to prevent the first respondent from proceeding against him in the Administrative Decisions Tribunal. Pursuant to section 48 of the Supreme Court Act, Dunford J determined to refer the matter to the Court of Appeal. (See decision of the Court of Appeal: The Ombudsman v Koopman & Anor [2003] NSWCA 277). 29 This is a matter in which the Tribunal has jurisdiction, and, specifically, the Appeal Panel has jurisdiction to hear and determine the appeal. If either party is dissatisfied with the ultimate decision of the Appeal Panel, no doubt it will pursue its rights in the Supreme Court. The appropriate course is for the matter to be dealt with to finality by the Appeal Panel. 30 In the course of his oral submissions on 7 March 2007, the following exchange took place between the appellant and myself: APPELLANT: And that leads me on to the next point in regard to jurisdiction. Your Honour, I would submit that it is not possible for you to find in respect of jurisdiction that you, as a Deputy President of this Tribunal, could sit in judgement on an allegation of bias against the President of the Tribunal without any reasonable observer being apprehensive that you were biased in that decision because your future career depends largely - in large part on the person on whom you're sitting in judgement. I put that submission - HER HONOUR: I assure you it does not, Mr McGuirk, it really does not. I'm appointed by cabinet on the recommendation of the Attorney General and let me tell you that after 22 years as a judicial officer and now facing the possible joys of retirement at any moment that suits me I do not live in fear of Judge O'Connor. APPELLANT: Thank you very much. HER HONOUR: We can dispose of that once and for all. APPELLANT: That's good and I do note that in my criminal law reading there is a judgment of yours which is quoted many times in the Criminal Law you might remember. The one with the axe, …. 31 Prima facie, the initial portion of that exchange must be read as an application by the appellant that I disqualify myself on the grounds of apprehended bias. I take the view that the application was not pursued by the appellant, and, had it been, it would not have been successful. 32 The 2 questions raised by the appellant in para.70 of his submissions on jurisdiction are answered: 1. The Appeal Panel has jurisdiction to hear and determine the appellant's appeal. 2. There is no obligation on the Tribunal to refer the matter to the Supreme Court. 33 Orders accordingly: 1. The Notice of Appeal filed by the appellant on 1 September 2006 will proceed to hearing before the Appeal Panel of the Administrative Decisions Tribunal. 2. Stood over to Directions Hearing 10am 2 May 2007

McGuirk v Vice-Chancellor, University of New South Wales & Anor

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