The following is an edited text of the oral reasons given at the close of the hearing on 22 December 2009.
REASONS FOR DECISION
1 Background: The appellant lodged a notice of appeal with the Tribunal on 6 October 2009 in relation to a decision of the General Division of the Tribunal delivered 16 June 2009: see Potier v Department of Corrective Services [2009] NSWADT 143. An appeal must be made within 28 days of the provision of the written reasons unless the Appeal Panel decides to extend the time for lodgment: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(3). The respondent agency opposed the extension of time, noting that the lodgment occurred 101 days after the day on which the appellant (a prisoner) stated that he received the decision, and 111 days after the decision was made.
2 The extension of time involves an 'interlocutory function' (ADT Act, s 24A(1)(d)), and the Appeal Panel may be constituted by a single presidential member for that purpose (s 24A(2)), as distinct from the usual three member Panel.
3 The 16 June 2009 decision was further to the Tribunal's principal decision in the proceedings.
4 The appellant had applied for review of a determination relating to an application for access to documents, made under the Freedom of Information Act 1989 (FOI Act). The principal decision dealt with that dispute, and there was no appeal.
5 The decision the subject of this appeal dealt with three matters: the appellant's application under s 88 of the ADT Act for costs of those proceedings, an application to the Tribunal to refer conduct of certain officers of the agency to the Supreme Court as involving possible contempt in exercise of the power given by s 131 of the ADT Act, and an application for the Tribunal to report to the Minister failure by officers to act in good faith in exercise of the power given by s 58 of the FOI Act. The Tribunal made orders refusing all these applications.
6 In the notice of appeal, the appellant objected to the Tribunal's decision as it related to the costs application, and the application for exercise of the contempt referral power, but not in relation to the s 58 application; and applied for leave to extend the appeal to the merits of the two applications mentioned.
7 The following is a revised text of the oral reasons given at the close of the hearing on 22 December 2009. The appellant appeared by telephone link. The appellant has requested written reasons pursuant to s 89 of the ADT Act.
8 HIS HONOUR: The notice of appeal is dated 6 October 2009, and it relates to a decision dated 16 June 2009. Mr Potier's position is that he was not aware of the decision until 25 June 2009 and that he made attempts to ascertain what the appeal procedure of the Tribunal is in terms of the Forms that are required. He knew about the twenty-eight day time limit, that does not seem to be a debate. The other matter of debate is what level of access he has to internet information. Miss Burnett, who appears for the department, asserted that he had access. He says he has not got access. I am not in a position today to resolve that evidentiary dispute.
9 Mr Potier has referred us to a history of interactions with the Registry, most of which I can corroborate from the Registry files, either the file of the proceedings below, or the file related to the Appeal Panel. I can not, I must say, corroborate immediately the initial telephone interactions. The normal practice is for telephone notes to be kept. It may be that they are there somewhere and I just have not found them. But we can corroborate his written interactions. It does appear that as at 31 July he had formulated a notice of appeal and was actively seeking to lodge a notice of appeal. The practical lodgement did not occur until 6 October. That seems to be explained by the reasons he gives, which is that there was some delay apparently in furnishing him with forms or separately there was an issue about waiver on grounds of hardship. I think I must also take some notice of the fact that he is incarcerated.
10 Whilst I accept unreservedly that the Department did not get notice of the appeal until ten weeks after the appeal period, that seems to be attributable to interactions that were occurring unknown to it between our Registry and Mr Potier. Mr Potier manifested at least by late July an intention to appeal. Had his documents been treated as a valid notice of appeal on the day they were received, 31 July, which in a more informal world they may well have been, then he would have been just barely out of time.
11 So it seems to me in those circumstances I should grant leave to appeal. So your case is accepted in that regard Mr Potier.
12 Now as to the substance of the matter. Whilst there does not appear to be an application for leave to appeal interlocutory issues, it is my view that this is an appeal that falls into that category, either on the basis that there is an application for summary dismissal (see ADT Act, s 24A(1)(h)); or the issues raised (costs, referral for contempt) fall into the broad reference to 'other interlocutory issues' in s 24A(1)(i). Accordingly, it may be dealt with me sitting alone (s 24A(2)).
13 I wondered initially whether a refused application to the Tribunal below to refer for contempt can be the subject of an appeal to the Appeal Panel at all, but it may well be that a broad reading of the appeal provisions does allow for that possibility. The appeal provisions speak of an appealable decision being 'any decision made in proceedings for review of a reviewable decision', so I lean to the view that this is a decision made in the proceedings and is therefore appealable.
14 As to whether the issues fall within s 24A(1)(i), the distinction between final and interlocutory judgments is not always easy to draw, but the test is now whether the judgment or order challenged, as made, finally disposes of the rights of the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 439; Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47 at [3]; and Baltic Shipping Company v Dillon "Mikhail Lermontov" (1991) 22 NSWLR 1, (per Kirby P with whom Gleeson CJ agreed at 14C). I note that in Baltic Shipping Company Kirby P doubted that a costs judgment ought be treated as a secondary issue. His Honour said at 33B:
'...Clearly in a case such as the present, the cost order was a most important one. The respondent, or at least those behind her had a vital interest in it. In these circumstances, I regard the order disposing of costs as one of the orders disposing of the whole proceedings.'
15 Now as to those two matters, it is correct as Miss Burnett observes that both involve discretionary judgments on the part of the Tribunal.
16 It is said by Mr Potier that there is a public interest in having his application on the point of law, as he calls them, pressed, that is, the question of whether there is a sort of costs principle that should apply to agencies if they do not fully respond to the request at the first opportunity; and the way the Tribunal should deal with a contempt application.
17 This case is substantially resolved as the principal dispute. In my view, he has no tenable case in relation to either of the matters raised.
18 Costs Issue. Mr Potier presents as a litigant in person. At common law costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation: Cachia v Hanes (1994) 179 CLR 403 at [11]. Costs are intended to reimburse a litigant for costs actually incurred; they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant: Cachia v Hanes at [18]. We have recognised in this Tribunal that a litigant in person can have their out-of-pocket expenses within the framework of s 88 of the ADT Act, but I notice the Tribunal below questions whether that is within the boundary. It just seems to me that whilst this may be an interesting question worth agitating on some occasion, it is not in the public interest for this to be addressed on this occasion.
19 The matter is largely resolved, and in my own view whatever costs (in the nature of expenses) might be involved could only be minimal in the circumstances). So I do not grant leave to re-agitate the question of costs.
20 Contempt Issue. As to the question of contempt, it is said that a number of the observations in the costs paragraph (at [22]) of the decision are matters relevant to the contempt observations of the Tribunal. The Tribunal does not say that. So I have some doubt about whether the Tribunal saw the two matters as interrelated. An allegation of contempt, as Mr Potier no doubt understands, is a very serious allegation to make, and it is a serious matter to report to the Supreme Court. I think in the history of this Tribunal there have only been two or three formal referrals to the Supreme Court. It is a power to be exercised with great circumspection.
21 The material that I have before me indicates that Mr Potier was non-specific as to particulars such as - the officers that may be responsible for the conduct, and the nature of some of the conduct. I understand that the issues are related to delays and adjournments and matters of that kind. I can understand that a prisoner might be most reluctant to identify directly personnel against whom he has a grievance. But I take it in the prison system there must be some protocols that surround these sorts of difficulties. It is obviously possible for confidential material to be put before the tribunal and a debate may then need to be had about whether it ought to be protected by suppression orders. Similarly I presume the same possibilities exists if the matter did reach the Supreme Court. So I do not see them as fundamental obstacles. Nevertheless, there is not any sufficient level of particularity in this case. In my view there is no tenable case.
22 Again, this is a broad discretion, a discretion to report for contempt. It seems to me it would be most unlikely, both in respect of the costs matter and in respect of the contempt referral, that an Appeal Panel would intervene having regard to the principles in House v The King (1936) 55 CLR 499; see further Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
23 There is nothing apparent to me about the appeal in this case that suggests it has any prospects of success on these points.
CONCLUSION
24 For those reasons, I grant leave for the appeal to proceed out of time, but I refuse leave in exercise of the discretion of the Appeal Panel in respect of interlocutory matters. The result of those observations is that the appeal is dismissed.
25 I will arrange for a text of these reasons to be furnished to the parties at the earliest possible date. That is affected at the moment by the holiday period.