Chief Commissioner of State Revenue v Kelly and Seve (No 2) (Rd)

[2010] NSWADTAP 80

Appeal Panel - Internal

CITATION:	Chief Commissioner of State Revenue v Kelly and Seve (No 2) (RD) [2010] NSWADTAP 80
PARTIES:	APPELLANT Chief Commissioner of State Revenue RESPONDENT Francis Kelly and Joanne Seve
FILE NUMBER:	109019
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 August 2010
DATE OF DECISION:	6 December 2010
BEFORE:	Callaghan P, SC, Deputy President; Frost S - Judicial Member; Koutoulas D - Non-Judicial Member
CATCHWORDS:	Interlocutory applications – leave to extend appeal to review merits
DECISION UNDER APPEAL:	Kelly v Chief Commissioner of State Revenue (No.2) [2010] NSWADT 52
FILE NUMBER UNDER APPEAL:	Kelly v Chief Commissioner of State Revenue (No.2) [2010] NSWADT 52
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514 House v The King (1936) 55 CLR 449 Lloyd v Veterinary Surgeons Investigation Committee (2005) 65 NSWLR 245 Nicholls v Director General, Department of Education (No.2) [2009] NSWADTAP 20 O’Sullivan v Medical Council of NSW [2010] NSWADTAP 64 Port Stephens Council v Sansom (2007) 156 LGREA 125Warren v Coombes (1979) 142 CLR 531
REPRESENTATION:	APPELLANT I S Young, counsel RESPONDENT J. Seve, solicitor
ORDERS:	1 Adjourn the application for leave to extend the Appeal to a review of the merits of the subject decision to be dealt with at the hearing of the Appeal 2 Reserve the issue costs.

REASONS FOR DECISION

1 This is a decision by the Appeal Panel made on the papers at the request of the parties and in our view consistently with s76 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”), on an interlocutory application made by the Appellant to extend the appeal pursuant to s113(2)(b) of the ADT Act to a review of the merits of the decision under appeal. The decision under appeal is Kelly v Chief Commissioner of State Revenue (No.2) [2010] NSWADT 52 19 February 2010 wherein the Judicial Member constituting the Tribunal dealt with the issue of costs and ordered that (“the costs order”):

“The Respondent pay half of the Applicants costs of or incidental to proceedings in the Tribunal and the *costs of or incidental to the application (where *costs refers to the costs and disbursements payable by Mr Kelly to Ms Seve (for professional legal services)), as agreed or as assessed under the Legal Profession Act 2004.”

2 The relevant background is set out in the decision recently delivered by the Presidential Member of this Appeal Panel on two other interlocutory applications within this appeal: Chief Commissioner of State Revenue v Kelly (RD) [2010] NSWADTAP 79 (“the first interlocutory decision”). In the first interlocutory decision this application is referred to as the second interlocutory application. The grounds on which leave is sought as specified in the Notice of Appeal are set out in the first interlocutory decision but we repeat them here:

(a) The current appeal has formed the subject matter of two decisions (excluding this current appeal) in the Tribunal.

(b) It is in the interests of justice and finality not to subject the parties to further time, cost and inconvenience by remitting the matter back to the Tribunal for reconsideration according to law.

(c) The Appeal Panel has all the functions that are conferred on the Tribunal at first instance to make the appealable decision concerned.

3 The Appellant, correctly in our view, submits that whether the Appeal alleges or raises a question of law is not relevant to the exercise of the discretion under s113(2)(b) of the ADT Act to extend the appeal to a review of the merits of the decision below: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at [57-[64] and Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514 at [11]. Nevertheless, Ms Seve points out on behalf of the Respondents that the Appeal Panel still has a discretion under s113(2)(b) of the ADT Act which it must exercise. That discretion has to be exercised bearing in mind, among other things, the discretionary nature of the costs decision. The last point raises issues whether a discretionary order of costs is reviewable in terms of House v The King (1936) 55 CLR 499 or in terms of Warren v Coombes (1979) 142 CLR 531, in other words, whether a wrong principle applied in the subject decision has to be determined or whether the Appeal Panel is entitled to reach its own conclusion about inferences to be drawn from primary facts: see Port Stephens Council v Sansom (2007) 156 LGERA 125 at [51]. Again, s114(2)(c) of the ADT Act permitting the Appeal Panel to make an order in substitution for the order appealed from may be a relevant consideration.

4 There is not at this stage the opportunity for a full appreciation to be achieved by the Appeal Panel of the matters referred to in the preceding paragraph or of all the circumstances that may be relevant for s113(2)(b) purposes (see Nicholls v Director General, Department of Education (No.2) [2009] NSWADTAP 20 at [71] and O’Sullivan v Medical Council of NSW [2010] NSWADTAP 64 at [24]).

5 In these circumstances we are of the opinion that the application for leave to extend the appeal to review of the merits of the subject decision should not be dealt with on an interlocutory basis but should be adjourned to be dealt with at the hearing of the Appeal. We will reserve the issue of any costs.

6 We make the following orders:

(1) Adjourn the application for leave to extend the Appeal to a review of the merits of the subject decision to be dealt with at the hearing of the Appeal.

(2) Reserve the issue of costs.