People with Disability Australia Incorporated v Minister for Disability Services & Anor

Judgment 1ALLSOP P : I have had the advantage of reading the reasons of Beazley JA. I agree with them. 2Here, there was a question of law involved in the appeal: the proper construction of the relevant statutes, and, in particular, the Administrative Decisions Tribunal Act 1997 (NSW), s 6. The construction of that provision by the Appeal Panel was, with the utmost respect, wrong. This being so, there was certainly no question of jurisdiction. (I leave to one side whether there was truly a question of jurisdiction even with that question live.) As Beazley JA says, the argument really was about particulars and the adequacy or clarity of the information in the summons to enable the review to proceed promptly and efficiently. 3The fact that all the relevant centres had closed should have been brought to the Court's attention. Both parties were responsible for this. 4The Minister, in this Court, as before the Appeal Panel, did not contend for the construction of s 6 that found favour with the Appeal Panel; though, it should be said, the submissions on this question in this Court were far from pellucid. 5As the reasons of Beazley JA reveal, the submissions of the Minister (in light of the concession on the construction of s 6) were somewhat opaque. It is to be recalled in this respect that the so-called jurisdictional point was taken initially when the Minister propounded a restricted view of s 6. 6There was a reason remaining after the closure of the centres for the appellant to seek to have the orders of the Appeal Panel set aside - the precedent (at least in the Tribunal and Appeal Panel) about the construction of s 6. That purpose of the appeal could have been achieved, efficiently and promptly, by the Minister agreeing to the orders of the Appeal Panel being set aside, to an end to the litigation and to a submission on the error of construction by the Appeal Panel. Instead, an entirely moot appeal was run with orders of the Appeal Panel being defended by the Minister in the way described by Beazley JA. The ventilation of these matters through the submissions that were filed and made, with the actual result moot, and without informing the Court of that fact was wasteful of costs and time (the Court's and the parties'). 7In these circumstances, the appeal should be allowed, the orders of the Appeal Panel identified by Beazley JA should be set aside and the respondent should pay the appellant's costs. 8BEAZLEY JA : This is an appeal from the decision of the Appeal Panel of the Administrative Decisions Tribunal (the Tribunal) made on 18 June 2010 in which the Appeal Panel determined there was no reviewable decision of the respondent Minister for Disability Services so as to engage the jurisdiction of the Tribunal. 9The proceedings in the Tribunal related to the operation of certain institutional accommodation for disabled persons, known as the Lachlan Centre and the Peat Island Centre. As initially pleaded, a third centre, the Grosvenor Centre, was also subject of the application, but reference to it was withdrawn, as that centre had been closed some time after the application was filed. 10The Lachlan and Peat Island Centres are also now closed. The closure occurred after the Notice of Appeal was filed in this Court, but well before the appeal was set down for hearing. Although both parties were aware of the position, this information was only forthcoming to the Court shortly before the close of the submissions of the Minister. Both parties acted inappropriately in not bringing this to the Court's attention. The Court should have been informed, as soon as that position was known, so as to determine whether the matter should be permitted to proceed when there was no ongoing dispute between the parties. 11When questioned as to why the appeal should not be dismissed, the appellant contended that there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question, which it contended was in issue on this appeal, namely, whether ongoing conduct constituted a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997. The appellant submitted that that issue had been wrongly decided by the Appeal Panel and unless corrected the Tribunal, would effectively determine the result, at least at Tribunal level, of the other proceedings. 12The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. 13As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. 14One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113. 15As the appeal had been argued almost to its conclusion when the Court ascertained that there was no dispute between the parties in respect of the Lachlan and Peat Island Centres, I have concluded that the Court ought to determine the issue raised on the appeal, involving as it does the proper consideration of s 6(1)(g), as there is at least one other proceeding on foot where that question will be pivotal to the determination of the proceeding. Had the position between the parties in this case been known to the Court when the matter first became moot, a different position may have been taken.