Totterman v Richmond Valley Council

Consideration

The Tribunal that considered the 2023 joinder application commenced by referring to the decision of the Court of Appeal in Fine. That Court reversed a decision by the Appeal Panel and allowed an application by the Commissioner of Police to be made a respondent to the proceedings. The key parts of the decision in Fine are set out at [38]-[40] [38] The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party ": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party. [39] A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] 40 41 42 43 above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle. [40] The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.
The 2023 Tribunal also referred to the decision of the Appeal Panel in Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited; Forbidden Foods Pty Limited v Rice Marketing Board for the State of New South Wales [2020] NSWCATAP 182 (Rice Marketing). There a third party was applying to be joined as a party to the appeal from a Tribunal decision in which the third party had exercised its right to be heard under s 104(3) of the GIPA Act. The 2023 Tribunal noted that the Appeal Panel in Rice Marketing held (at [74]) that the third party could not "properly be characterised as a party in the Tribunal below for the purposes of NCAT internal appeal rights under s 80": 2023 Tribunal at [39]. It set out what the Appeal Panel had said in Rice Marketing at [104]-[105]; and at [107]-[108] about the relationship between s 44 of the CAT Act and other rights to be heard such as that provided by s 104(3) of the GIPA Act: [40]-[41]. While the Appeal Panel held that it could join a party to an appeal, there was no right to initiate an appeal that arose out of a right to be heard pursuant to s 104(3) of the GIPA Act: [42]-[43]. The decision of the Supreme Court in Keevers v Sarraf Property Group Pty Ltd [2022] NSWSC 1017 was to similar effect: see [128]; [151]. Thus although the Appeal Panel has a power to join a party to an appeal, that party cannot be a "plaintiff" (ie bring an appeal from a primary decision) if it has not been a party to the proceedings below.
Applying that reasoning to the case then before the Tribunal, the Tribunal made an order joining Ayr for the following reasons 1. The Tribunal was satisfied that Ayr is aggrieved by the decision under review and has a right to be heard pursuant to s 104(3); [44] 2. The substantive proceedings relate to a request for records of the respondent in relation to property owned by Ayr, which is a third party objector. [45] 3. The Tribunal noted that in Marrickville Council, the Tribunal had joined a third party objector as party in first instance proceedings where it otherwise had a right to be heard pursuant to s 104(3) [46] 4. As noted above, the Tribunal stated that "due to the information said to be commercial-in-confidence and the current LEC proceedings in which the applicant and Ayr are parties, …Ayr is in the best position to identify to the Tribunal how its interests and the LEC proceedings could be prejudiced by disclosure of relevant information": [47] 5. Ayr is a "proper party" (as per the approach set out in Rice Marketing at [117] where the Appeal Panel had found that the third party "is a person whose interests are affected by the Tribunal's decision and has a material interest in the result of the appeal proceedings; [and] is not a "mere inter-meddler".:[48] 6. It was "necessary to join Ayr as a party in the substantive proceedings to assist the Tribunal to determine effectually and completely all matters in dispute in the proceedings".[52] 7. The Tribunal did not consider that providing Ayr with an opportunity to participate in the substantive proceedings will cause undue delay or additional costs, having regard to orders that had already been made.[53] 8. The discretion in s 44 is a broad discretion and joining Ayr in this case was consistent with the guiding principle (referring to s 36 of the CAT Act). The Tribunal was satisfied that Ayr is a "proper and necessary party" and that it was appropriate for it to be joined. [54]
The applicant contends that as there are no longer proceedings on foot in the LEC, the reasoning of the 2023 Tribunal is not relevant. It also contends that Ayr had its opportunity to raise its concerns when it was consulted pursuant to s 54 of the GIPA Act and that it cannot now raise matters that were not agitated at that stage. It also argues that the company cannot or ought not be representing the interests of its director, Ms Yared and she should make her own joinder application.
By contrast, Ayr contends that it is in the same position as Marrickville Council where the Tribunal joined a third party objector as a party in first instance proceedings and that the only way in which to preserve its appeal rights pursuant to s 80 is by being joined as a party, rather than participating in the more limited basis provided for by s 104(3) of the GIPA Act.
It is certainly the case that there is no evidence of any current proceedings in the LEC between the applicant and Ayr. Nonetheless, there is at least one live dispute between the applicant and Ayr (or its employee), apart from the current GIPA proceedings. That involves the proceedings brought by Ms Yared against the applicant.
Ayr contends that Ms Yared is both a director and the managing director of the company; that is, she is both a director and an employee and in the latter capacity the company owes her a duty of care. The applicant contends that as the APVO proceedings concern her and not the company, she ought herself have sought to be joined in the proceedings.
Ultimately, one of the issues that the Tribunal will be called on to decide is whether the public interest ground under s 14 clause 3(f) on which RVC relies is made out, that is, whether disclosure of the information would (f) expose a person to a risk of harm or of serious harassment or serious intimidation". The Tribunal considers that evidence about the proceedings through which there is now an interim APVO in place will likely be relevant to that ground.
The applicant is correct to point out that the final hearing of the APVO matter is yet to take place and all that is in place is an interim order. However, as is apparent from the transcript annexed to the applicant's submissions, it is not entirely accurate to say there was "no evidence" before the Court. There was at least one item of evidence adduced in the proceedings on 23 November 2023, which was a photograph of the house that the presiding magistrate found was taken on the land by the applicant and Ms Yared had expressed fears for her and her children's safety. Her Honour stated: on balance, the applicant has satisfied me that since these proceedings are still going and Mr Totterman seems to want to still gather evidence, that it may well involve engaging in behaviour that may amount to stalking, maybe seen as behaviour that is harassing to someone who lawfully occupies the property. I am persuaded on balance that it is appropriate for an interim order to be made.
In circumstances where Ms Yared is both a director of the company and its managing director, there is no reason, particularly taking into account the guiding principle set out in s 36, why the Tribunal should consider that Ayr is not a proper or necessary party in circumstances where the safety of one of its staff members/directors is implicated.
As for the contention that the LEC proceedings are no longer on foot, the remarks of the magistrate about the applicant seeking to gather evidence could apply equally to his dispute with RVC.
There is no basis for suggesting that s 54 of the GIPA Act is exhaustive of Ayr's right to raise issues. Whether Ayr is made a party to the proceedings pursuant to s 44 of the CAT Act or is heard pursuant to s 104(3) of the GIPA Act, it is entitled to raise whatever arguments it chooses or adduce any evidence for which provision is made in timetabling orders. It is well established that a Tribunal such as this one is not limited to reviewing the correctness/legality of decisions that have been made. Rather, in determining an application for review, the Tribunal operates in accordance with s 63(1) of the Administrative Decisions Review Act 1997 (NSW). That provision sets out the role of the Tribunal as being to decide what is the correct and preferable decision having regard to the material before it. That can include material that postdates the decision under review (see Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). In those circumstances, the fact that there was a consultation process under s 54 cannot be determinative of whether to join a party.
As for the argument about whether Ayr's participation will increase the length or costs of the proceedings, as Ayr has pointed out, if it were the case that that occurred, s 60 provides a discretionary power to order costs and such an application could at that stage be made by the applicant if it were considered appropriate.
It is now well established that an interested party who was not joined to first instance proceedings cannot initiate an appeal under s 80 of the CAT Act (although can apply to be joined to an appeal brought by one of the parties). Given the central role Ayr plays in this dispute: it is the owner of the land the subject of the application to RVC; its managing director is the subject of an interim APVO arising out of activities on the subject land and it was previously joined to Tribunal proceedings (now discontinued) involving the same applicant and the same respondent, the Tribunal is satisfied that Ayr is a person affected by the proceedings and is a proper or necessary party to the current proceedings.
As the Tribunal stated in the 2023 decision, the discretion conferred by s 44 of the CAT Act is broad and in this case, is to be exercised in favour of permitting Ayr to be joined as a second respondent to the proceedings.

At a glance

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Decision date

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Judgment (7 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (6)