Secretary, Department of Communities and Justice v Feeney

Legal principles

There is currently no dispute between the parties on any issue. The Secretary has complied with Tribunal's orders and Mr Feeney is not a party to current legal proceedings where he is able to apply for the information. If the Appeal Panel were to make a determination, it would be have no practical outcome for either party. In those circumstances, the appeal is moot.
The Appeal Panel has power to dismiss an appeal at any stage of the proceedings, for reasons including that "the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance": NCAT Act, s 55(1)(b). The Tribunal has power under that provision to dismiss a moot appeal. In determining whether to dismiss an appeal we are guided by the principles applied by courts when faced with a moot appeal.
The guiding principle in s 36 of the NCAT Act is that the Tribunal is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". However, that principle applies to issues of practice and procedure, not to substantive issues before the Tribunal.
The most recent and authoritative discussion of the relevant principles can be found in Hunter Development Corporation v Save our Rail NSW Incorporated (No 2) [2016] NSWCA 375; 93 NSWLR 704 (Hunter Corporation). At [34], Beazley P (as her Excellency then was) quoted the High Court's explanation for the general rule in Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334; [1999] HCA 9 at [47]: Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions.
In Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin) at [35], Campbell JA (Young JA and Meagher JA agreeing) went so far as to say that: "[I]t could only be in rare circumstances, if ever, that a court was justified in reaching a decision on legal question that had no practical consequences for either of the parties": Gardner v Dairy Industry Authority of New South Wales [1977] 18 ALR 55 at 60, 69.
In Hunter Corporation, the substantive matter in dispute in the court below was no longer in issue. Amending legislation had been passed when the judgment was reserved. Nevertheless, the issue of costs at first instance was a live issue between the parties. On appeal, Beazley P held at [27]-[38], [46] and [56], that because a successful party is usually entitled to an order for costs of the proceedings in the court below, the determination of the costs issue required the determination of the principal issue raised in the proceedings. For that reason alone, the appeal was neither hypothetical nor abstract and it was appropriate and necessary for the court to deliver judgment. In those circumstances, it was not necessary to decide the correctness of any other basis for determining the appeal.
The remainder of Beazley P's judgment assumes, without deciding, that the line of authority in People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (PWD Australia); Jardin v Metcash Ltd [2011] NSWCA 409 (Jardin); and Commissioner of Taxation v Industrial Equity ltd (2000) 98 FCR 573; [2000] FCA 420 (Industrial Equity) at [16] is correct. We summarise the effect of each of these judgments before returning to Beazley P's reasoning in Hunter Corporation.
PWD Australia appealed from a decision of the former Appeal Panel of the Administrative Decisions Tribunal (ADT). The Appeal Panel had decided that the Minister for Disability Services had not made a reviewable decision and that the ADT had no jurisdiction. The accommodation centres run by PWD were closed after the Notice of Appeal had been filed in the Supreme Court, but well before the appeal was set down for hearing. The closure of those centres meant that the appeal was moot.
The Court (Beazley JA, Allsop P and Handley AJA agreeing) was critical of the parties for not bringing the closure of the centres to their attention until making their final submissions: Allsop P at [3]; Beazley JA at [10]. After emphasising that the Court does not have an advisory jurisdiction, Beazley JA re-stated the general rule that in such circumstances it would not entertain the appeal. Her Honour went on to explain at [13] that the Court retains a discretion to 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".
The Court decided to determine the appeal for two reasons. First, the appeal had been argued almost to its conclusion before the Court was told that there was no dispute between the parties. "Had the position between the parties been known to the Court when the matter first became moot, a different position may have been taken." (Beazley JA at [15].) Secondly, there was at least one other proceedings on foot where the subject of the appeal (the proper meaning of s 6(1)(g) of the Administrative Decisions Tribunal Act 1997 (NSW)) would be pivotal: Beazley JA at [15].
In a second Court of Appeal judgment published four months later, Campbell JA (with whom Young JA and Meagher JA agreed on this issue) exercised the discretion to hear a moot appeal because there was a live issue as to costs: Jardin at [1]. After citing numerous cases where leave to proceed to hear a moot appeal had been refused, his Honour identified two factors that may favour determining such an appeal: Jardin at [32]. The first was where a "practical point" might be served because the decision is likely to affect other cases. Campbell JA accepted that there was an important question of principle at stake, but did not base the decision solely on that fact.
The second factor - whether there is a live question of costs - was decisive in this case. At [36] Campbell JA concluded that: Notwithstanding the usual reluctance of the court to permit appeals that in practical terms relate only to costs, in the present case the sheer size of the costs is such that justice requires that the Appellants be given the opportunity to question the legal basis on which those costs were awarded.
The third judgment which Beazley P assumed was correct for the purpose of the analysis in Hunter Corporation, was Industrial Equity. That case raised the question of whether an order for costs at first instance was correctly made. The Court (Hill, Heerey and Hely JJ) explained at [13] that, "[T]he determination of that question involves the Court determining who is entitled to succeed, that is to say the substantive merits of the appeal". As there was an existing controversy between the parties, the Court did not need to decide whether there is a discretion not to proceed in such a case. To the extent that there is such a discretion, the Court made the following observations at [16] about the relevant factors to be taken into account: To the extent there is a discretion which the Court might exercise, factors weighing against its exercise are that the present appeal involves an issue of construction having a significance beyond the immediate rights of the present parties and there are serious arguments capable of being advanced as to the correctness of the judgment, which can be disposed of quite shortly. For these reasons we were of the view that we should proceed with the hearing of the appeal.
Returning to Beazley P's reasoning in Hunter Corporation, her Honour summarised the alternative ground for determining the appeal at [57]: On the assumption that those authorities (Jardin, PWD Australia and Industrial Equity) are correct, they provide another basis upon which it was appropriate, in the exercise of the discretion, for the court to have delivered the principal judgment. There was a significant issue in the case as to the proper construction of the legislation, and in particular s 99A of the Transport Administration Act. (Words in brackets added.)
In addition to that reason, Beazley P included the fact that the "construction of s 99A may also arise in the future" as providing another basis as to why it was appropriate to deliver judgment": Hunter Corporation at [59].
As well as this line of authority, the Secretary in the present proceedings cited McColl JA's remarks in Attorney General (NSW) v XY (AG v XY) [2014] NSWCA 466 at [111] - [119]. After noting that "practically speaking, there is no live controversy between the parties", her Honour concluded at [18]-[19], that: Nevertheless even where later events show an appeal has become moot, the Court has a discretion to permit such an appeal to proceed, if a practical point would be served by doing so (Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448 (at [ 31] - [32]) per Campbell JA), one such circumstance being that the decision is likely to affect other cases: People with Disability Australia Incorporated v Minister for Disability Services & Anor (at [14] - [15]; Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd (at [32]). Although the Attorney General did not identify any current cases to which the interpretation of the relevant provisions could have application, it is not difficult to envisage that such cases could arise. In those circumstances, I agree with Beazley P's reasons and the orders her Honour proposes. I also agree with Basten JA's reasons.
These remarks are not binding because it appears that the respondent did not raise the question of the appeal being moot. That can be implied from the fact that neither Beazley P nor Basten JA, who delivered the principal judgments, referred to that issue.
The ADT's decision in New South Wales Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 is of little assistance as it was decided before the Court of Appeal handed down the decisions discussed above.
In summary, in three Court of Appeal judgments - Hunter Corporation, Jardin and Industrial Equity - there was a live issue as to costs. The Court gave leave to appeal solely or principally on that basis. In PWD Australia costs was not a live issue but the Court gave leave because the appeal had been argued almost to its conclusion and there was at least one other proceedings on foot where the question of law raised in the appeal, was likely to be pivotal.

Consideration

As a general rule, the Appeal Panel should not entertain appeals on legal questions that have no practical consequences for the parties. Where there is a live issue as to costs, the appeal may be determined but courts have sometimes expressed reluctance to do so unless, for example, the amount of costs in dispute is high. In this case, there was no live issue as to costs. We have not taken into account that Mr Feeney should not be put to the cost of defending the appeal. That consideration is already encompassed by the general rule that an appellate body should not determine a moot appeal.
Mr Feeney's solicitors filed an affidavit prepared by Peter Halim Fam dated 8 April 2021 setting out details of the instructions Mr Feeney gave to the Legal Aid Commission in these proceedings. Initially Mr Feeney did not instruct the Legal Aid Commission to represent him in this appeal but later did so. The absence of a contradictor is not a factor in determine whether to dismiss the appeal. The appeal has been fully argued by competent counsel for both parties.
The point in time when the appeal becomes moot is relevant. This is not a case where the appeal became moot after the appeal was filed. The proceedings were commenced with the knowledge that the appeal was moot. That fact weighs against determining the appeal.
The Secretary urged the Appeal Panel to determine the appeal because it raises a question of general importance to all public sector agencies about the meaning and operation of s 60(1)(e) of the GIPA Act. The first instance decision in these proceedings was the first time the Tribunal had considered the meaning of that paragraph. The only previous decision of the Appeal Panel addressing s 60 is Commissioner of Police v Danis [2017] NSWCATAP 7 (Danis). Section s 60 was amended to add s 60(1)(e) after that decision had been delivered. According to the Secretary, the Tribunal interpreted s 60(1)(e) too narrowly and inconsistently with the Appeal Panel's interpretation of s 60 in Danis.
In addition, the issue of the proper construction of s 60(1)(e) of the GIPA Act was said to be a significant one for the Secretary because of the number of subpoenas, statutory orders and notices issued to the Secretary since the amendment and the number of formal and informal access applications under the GIPA Act. Since the introduction of s 60(1)(e) in November 2018, the Secretary has refused to deal with 83 access applications in reliance on that provision. (Affidavit of Jodie Cobbin dated 22 June 2020.)
The grounds of appeal involve an issue of construction having a significance beyond the immediate rights of the parties. That is a factor in favour of determining this appeal. The impact of the Tribunal's decision on the time it takes for an agency to process a GIPA application, is reflective of the significance of the legal question in dispute. However, this is not a case where the Tribunal's decision is plainly wrong and can be disposed of quickly. Nor are there other proceeding on foot where the questions of law identified by the Secretary would be pivotal.
The single factor in favour of determining this moot appeal is that it raises a question of general importance to all public sector agencies about the proper meaning of s 60(1)(e) of the GIPA Act. For the reasons we have given, that factor is insufficient to displace the general rule that such appeals should not be entertained.

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