Discussion
20 The validity and fate of this appeal depend upon whether the Tribunal, which, on 10 January 2001, refused adjournments and dismissed the proceedings, was validly constituted. If it was, the appeal to this Court inevitably fails. If it was not, there is an initial question of whether the impropriety of a Tribunal, improperly constituted, proceeding to dismiss an application, can be adjudged by the Tribunal as constituted or the Appeal Panel or both of them. I am satisfied, from what was said by the Judicial Member on 10 January 2001, that the Tribunal as constituted on that day recognised that, within the meaning of s79 of the ADT Act, the consideration of the matter, namely the appellant's complaint, by the Tribunal had commenced.
21 Subsection (1) empowered, in the circumstances then obtaining, the Acting President to replace one of the members constituting the Tribunal if that member became unavailable for any reason and if the parties consented. The appellant did not consent so the condition for the exercise of that power was not met and the Tribunal was not, within the meaning of subs(2) "so reconstituted". That being so, according to subs(3), the proceedings were to be reconsidered by the Tribunal constituted in accordance with the Act. In Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 at para 10 of my judgment I said, with the agreement of Hodgson JA and Ipp AJA:
"This section establishes two courses to be followed where, as in the present case, a member of a Tribunal ceases to be a member before the matter is determined. If the parties all consent the President may replace that member. If a party does not consent, a new Tribunal is constituted 'in accordance with [the] Act'. There is no reason why the new Tribunal constituted under s79(3) should not, as in the present case, include members of the previously constituted Tribunal. A large part of the debate before the President and before the Appeal Panel turned upon whether or not the newly constituted Tribunal was engaged in a 're-hearing'. I do not understand there to be any debate now but that the newly constituted Tribunal starts the hearing afresh."
22 Section 22 of the ADT Act provides for the constitution of the Tribunal for any particular proceedings. Subsection (2) enables the President, or relevant Divisional Head (subject to any direction of the President), to give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Subsection (3) requires that in giving such a direction the President or relevant Divisional Head has regard to matters which are then listed in four paragraphs as follows:
"(a) the degree of public importance or complexity of the subject-matter of the proceedings,
(b) if the proceedings concern the review of a reviewable decision - the nature and status of the office of the administrator who made the reviewable decision,
(c) the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings,
(d) such other matters as the President or the Divisional Head considers relevant."
23 To my mind it is clear that between them ss79 and 22 describe two different presidential functions, the first of replacing a member in the circumstances described if the parties consent, and the second of giving directions as to the members who are to constitute the Tribunal for particular proceedings after having regard to the matters stipulated. In the present case it is clear that the Acting President sought to exercise power under s79(1) but could not do so because the appellant did not consent.
24 Convenience suggests that the President, wishing to exercise power under s79(1), should first obtain consent. If consent is not forthcoming from the parties or one of them the President can turn to giving directions as to the members who are to constitute the Tribunal pursuant to s22. The transcript of 10 January 2001 shows that the Acting President purported to exercise power under s79(1) to replace Judicial Member Lees subject to the parties consenting. There is not the slightest suggestion in anything that was said that day that when, during the hearing, it was discovered that the consent of one of the parties would not be forthcoming, the Acting President turned attention to giving directions pursuant to s22. The matter proceeded, as did the argument before us, on the basis that if consent was not given, automatically the Tribunal could be reconstituted under s22 to include the two members of Tribunal as constituted earlier, together with the replacement. But the results of the exercise of each of the powers are quite different. Section 79(1) enables the existing Tribunal constituted for the purposes of the proceedings to continue with a replacement of one of the members. If the power under s22 has to be used, which is what s79(3) contemplates, a new Tribunal is constituted and replaces the Tribunal "as previously constituted". The consequences in terms of what the Tribunal with a replacement and what the new Tribunal may do and have regard to are marked out by ss79(2) and (4).
25 Although it was suggested during argument that it was open to the respondent to rely on s22 as a source of power to support the valid constitution of the Tribunal on 10 January 2001, I do not consider that that head of power was so available. It is true that "a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed": Johns v Australian Securities Commission (1993) 178 CLR 408 at 426. However, this is only so provided that any conditions necessary for the exercise of the power have been satisfied: Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 at 85. In the present case, as I have noted above [22], s22(3) requires that in giving a direction under s22(2) as to the members who are to constitute the Tribunal, the President or relevant Divisional Head is to have regard to four listed matters. In the absence of evidence that the Acting President had regard to those matters when constituting the Tribunal on 10 January 2001, no proper basis exists for application of the principle of an alternative source of power.
26 I have set out the reasons given by the Tribunal as constituted on 10 January 2001 for concluding that it could proceed with the matter. Reference is made to the long history of the matter, to the value of "court" [sic] time and to the fact that the administration and the President had gone to substantial trouble and difficulty to ensure that the matter proceeded that day. In deciding whether it should proceed in what was described as the "alternative manner", which is a reference to s79(3), the Tribunal considered the history of the matter and identified many occasions on which it had been listed. For various reasons the matter had been subject to substantial delays. With due respect none of these matters had any relevance to the question of whether the Tribunal as constituted on 10 January 2001 was properly constituted to hear the proceedings. One can understand the concern and perhaps irritation caused by delay and by the matter not proceeding due to the appellant's illness in December 2000. But what happened in terms of the unavailability of the Judicial Member on 10 January 2001 was no fault of either of the parties. We were told that the appellant's representative first knew of the reconstitution of the Tribunal when she appeared before it on 10 January 2001. Had the Acting President sought the consent of the parties before considering whether it was appropriate to make a replacement under s79(1) and learnt of the appellant's refusal to consent, it may have been possible to constitute a Tribunal pursuant to s22 in time for the proceedings to be reconsidered by that Tribunal on that day.
27 In my opinion, the Tribunal as constituted on 10 January 2001 clearly erred in law in proceeding to deal with the proceedings in the absence of the appellant's consent. It was not constituted in a way that enabled it to do so and accordingly it had no jurisdiction to make the orders it did, most importantly the order summarily to dismiss the proceedings, and those orders are void.
28 There are other aspects of the matter that were raised and require mention. Section 79(1) provides a useful power to the President where a member of a duly constituted Tribunal, after the consideration of a matter by that Tribunal has commenced, becomes unavailable for any reason or ceases to be a member. The appellant argued that Judicial Member Lees was not "unavailable for any reason" within the meaning of para (a).
29 In the present case the proceedings had barely begun and had occupied only parts of two days with no witness evidence. A sensible solution and one suggested by the appellant's representative, since the appellant did not consent to a replacement, was to allow the matter to proceed on a date when all members of the Tribunal as originally constituted were available. In considering s79 it is for the President to decide whether a member is "unavailable for any reason". If a proceeding had occupied many days hearing and all the witnesses had given evidence no doubt, as a matter of discretion, the President would not seek to replace a member if, like Judicial Member Lees, the member to be replaced became unavailable for three or four days due to sickness or other reason.
30 In the present appeal it is unnecessary for us to give any precise meaning of the phrase "unavailable for any reason" and I do not think we should do so.
31 The Appeal Panel, in the passage that I have quoted from its reasons of judgment, saw the appeal as putting in issue the exercise of discretion by the Acting President in deciding to reconstitute the Tribunal. This, the Appeal Panel held, was not an appealable decision within the meaning of s112 of the ADT Act.
32 On 10 January 2001 the Tribunal, as then constituted, expressly or implicitly made several decisions. It decided it was properly constituted to hear the matter. It refused an adjournment to enable the appellant to appeal from that decision. It summarily dismissed the appellant's complaint. The last two decisions could only be made on the basis that the Tribunal was validly constituted to hear the complaint on that day. As the appellant's counsel sought to point out to the Appeal Panel, the challenge was not to the Acting President's exercise of discretion. It was acknowledged that the replacement power under s79(1) was not available in the absence of the appellant's consent. There was no suggestion that, on account of the appellant's refusal to consent, the Acting President had exercised a discretion to constitute a Tribunal under s22 to hear the complaint. The Tribunal was alive to the problem but proceeded erroneously on the basis that without consensual appointment of Mr Bartley as a replacement under s79(1) and without constitution of a Tribunal in the absence of that consent under s22 to hear the complaint, it could decide to proceed because the matter had been listed on many previous occasions and had been subject to substantial delays and both parties were present. The Tribunal failed to deal with the fact that it was not properly constituted. That error vitiated the orders it made and most importantly the order dismissing the complaint. I have no doubt that that was an appealable decision within the meaning of s112 of the ADT Act.
33 The amended notice of appeal sufficiently covers this error.