University of New South Wales v McGuirk [2008] NSWCA 26 | Case summary

1 In these reasons I deal with an application by Mr Michael McGuirk for summary dismissal of an appeal bought by the University of New South Wales against the decision of the Tribunal in McGuirk v University of New South Wales [2008] NSWADT 69. 2 In his original application for summary dismissal, filed on or about 10 April 2008, Mr McGuirk also sought summary dismissal of the University's application to stay the above decision. That application was determined on 8 May 2008 and orders were made staying the decision under appeal. 3 The Administrative Decisions Tribunal Act 1997 ('Tribunal Act') provides that a party to an appealable decision may appeal to the Tribunal constituted by an Appeal Panel (section 113(1)). An Appeal Panel must consist of at least three members and include one presidential judicial member, one other judicial member and one non-judicial member: section 24(2). In exercising any of its interlocutory functions in relation to an internal appeal, the Tribunal may be constituted by one presidential judicial member assigned by the President for that purpose: section 24A(2)(a). The interlocutory functions of the Tribunal are defined to include stays and summary dismissal of proceedings: section 24A(1). I have been assigned under section 24A(2)(a) to determine Mr McGuirk's application, the subject of these reasons. The background 4 Mr McGuirk has been in dispute with the UNSW for some time and has made a number of applications under the Freedom of Information Act 1989. The Tribunal has jurisdiction in certain instances to review decisions made by agencies, including the University, not to provide documents sought under the Freedom of Information Act. 5 In this case, in its decision by Judicial Member Montgomery on 5 March this year, the Tribunal ordered that Mr McGuirk be granted access to various documents sought by him. The University had refused access to those documents claiming legal professional privilege as its ground for doing so. 6 The University then filed a Notice of Appeal against the first instance decision of Montgomery JM. The appeal to the Tribunal's Appeal Panel is not yet listed. Other proceedings are on foot in the NSW Supreme Court which relate to the current matter. 7 The principal ground of appeal asserted by the University is that 'the Tribunal erred in law in holding that it had power to order the release of an exempt document'. It also seeks leave to extend the appeal to the merits of the first instance decision on the basis of 'manifest error' in the exercise of the Tribunal's discretion. The basis for the current application 8 Mr McGuirk, in essence, argues that the appeal is vexatious and an abuse of process and ought be dismissed summarily because it is so obviously lacking in merit that it is a hopeless cause. Rather colourfully, in his submissions filed on 21 July 2008, he suggests that one of the University's grounds of appeal is clearly 'onanistic in nature [and] should not have been included in a public document'. The issues for determination 9 The first question to be determined is whether the Tribunal has power to summarily dismiss an Appeal bought on a question of law (section 113(2)(a) of the Tribunal Act'). The University contends that the Tribunal does not have such a power. 10 Second, if the Tribunal has such a power, whether the discretion to dismiss the appeal summarily should be exercised. Does the Tribunal have power to dismiss a Notice of Appeal summarily? 11 Counsel for the University, Mr Singleton, argues that where an error of law on the part of the Tribunal is alleged by an appellant, that party has an appeal as of right: Pt 1 of Ch 7 (and in particular sections 113(1) and (2)) of the Tribunal Act). 12 Section 113 of the Tribunal Act provides that, in relation to an appealable decision, a party may appeal on a question of law as of right and by leave of the Appeal Panel in relation to the merits of a first instance decision. Under the provisions of sections 114 and 115, it is for the Tribunal constituted by an Appeal Panel to determine appeals brought before it under section 113. Section 24 of the Tribunal Act mandates that in exercising that function the Appeal Panel must consist of at least three members and be constituted in accordance with section 24(2). 13 Mr Singleton noted in his submissions that section 73 of the Tribunal Act provides, however, that the 'Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance'. 14 Section 73(5)(h) is the foundation of Mr McGuirk's jurisdictional argument. He contends that the appeal ought be dismissed summarily under that provision on the grounds that the appeal is vexatious, misconceived and hopeless. 15 Mr McGuirk does not, however, directly address in his submissions the question for resolution here. That argument goes to the second question I have raised above. 16 Mr Singleton contends that, because section 113 provides for an appeal as of right in relation to alleged errors of law 'it may be doubted that the Tribunal can dismiss an appeal summarily'. 17 In my opinion, although it is clear from section 73 that the Tribunal has a power to dismiss vexatious or misconceived applications, it is also clear from the structure of Pt 1 of Ch 7 of the Tribunal Act that Parliament intended that only the Appeal Panel, constituted by three members has power to determine appeals (including those on the merits). 18 It would be anomalous indeed if a single presidential member, sitting on an interlocutory application, could deprive an appellant of his, her or its appeal as of right on a question of law on the basis that the presidential member took the view that the appeal was hopeless or misconceived. That surely was not the intention of Parliament. 19 Section 73(5)(h) is a general power and the provision itself is a general provision. On the other hand, the provisions of Pt 1 of Ch 7 are specific provisions. In such a case, the ordinary rule of statutory construction is that where there is a conflict (or apparent inconsistency) between general and specific provisions, the specific provisions prevail. In my opinion, insofar as there is an inconsistency between section 73(5)(h) and section 113, the latter prevails and the right to appeal is preserved in relation to the question of law. 20 In my view, once a Notice of Appeal is properly filed it is for the Appeal Panel, constituted under section 24(1) to make all relevant determinations, including those in relation to any further applications under section 73(5)(h). 21 That disposes of the application. I will, however, in case I am wrong in making that determination, now consider the second issue. Ought the appeal be dismissed? 22 If, on the other hand, Mr McGuirk's application to dismiss is properly brought before me, it is necessary to consider whether to exercise the discretion under section 73(5)(h). 23 Mr McGuirk contends that the appeal is hopeless and completely without merit. It is unnecessary here to recite the procedural history or to deal at great length with the questions of law raised by the appeal. The essence of Mr McGuirk's argument is that because of the decisions by Nicolas J in University of New South Wales v McGuirk [2006] NSWSC 1362 and by the Court of Appeal in Howell v Macquarie University [2008] NSWCA 26, by which the Tribunal is bound, the appeal is hopeless and therefore an abuse of process. 24 Mr Singleton's riposte is that, while the University does not contest the fact that the Tribunal is bound by decisions of the Supreme Court, it seeks, first, to distinguish the decisions and, second, it seeks leave to appeal in relation to the merits of the first instance decision of Montgomery JM. 25 Mr Singleton contends that there are live issues for the Appeal Panel to address. That being the case, he argues that the principles expressed by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 come into play. That well-known decision consolidated the principles in relation to summary dismissal of proceedings. He said (at 128ff): The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". 26 Those common law principles apply in relation to the Tribunal's procedures as well as to courts. They reflect a determination by courts and tribunals to resolve disputes fairly and according to the rules of natural justice, especially the rule that a party whose interests may be adversely affected by a decision has the right to be heard before that decision is made. 27 Mr Singleton contends cogently that there are arguable issues to be considered and tried. Mr McGuirk disagrees. He submits that the law is settled and that the University has comprehensively lost the legal argument. It may be that Mr McGuirk has the law on his side and that ultimately the Appeal Panel or a superior court will determine that to be the case. At this stage in the proceedings, however, the University merely has to show that it has an arguable case, not a strong one. 28 In my opinion, the questions raised by this appeal are complex legally and certainly not clear-cut. Whether Nicolas J's and the Court of Appeal's decisions are distinguishable is itself a legal issue which is arguable, let alone the more substantive issues concerning the Tribunal's jurisdiction, the Freedom of Information Act and legal professional privilege. This case bristles with legal points. 29 It follows that, even if I have available for me to exercise a discretion to dismiss the appeal, it would not be appropriate in this case to do so. Orders

The application to dismiss the Appeal under section 73(h) of the Administrative Decisions Tribunal Act 1997 is refused
Appeal to be listed for directions at a date to be fixed by the Registrar.

University of New South Wales v McGuirk

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