Director-General, Department of Commerce v Cianfrano

[2007] NSWSC 849

CITATION:	DIRECTOR-GENERAL, DEPARTMENT OF COMMERCE v CIANFRANO & ANOR [2007] NSWSC 849 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	Monday 29 January 2007
JUDGMENT DATE :	8 August 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	No order is made under s.51 of the Supreme Court Act. Liberty to the parties to make submissions in relation to any ancillary orders.
CATCHWORDS:	Administrative law – referral of questions of law by the Administrative Decisions Tribunal of New South Wales to the Supreme Court – s.118 of the Administrative Decisions Tribunal Act 1997 (NSW) – no valid referral made – purported order made by a single member of the Tribunal, not by an Appeal Panel, as required – whether questions purportedly referred otherwise would fall within s.48 of the Supreme Court Act 1970 – one such question at least would fall within that section and so assignable under that Act to the Court of Appeal
LEGISLATION CITED:	Freedom of Information Act 1989 Administrative Decisions Tribunal Act 1997 Supreme Court Act 1970
CASES CITED:	Beesley v Commissioner of Police (NSW) [2000] NSWADT 52 Daykin v SAS Trustee Corporation & Ors (2001) 51 NSWLR 328 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Puglisi v Administrative Decisions Tribunal Appeal Panel [2001] NSWCCA 298
PARTIES:	DIRECTOR-GENERAL, DEPARTMENT OF COMMERCE v Robert CIANFRANO & ANOR
FILE NUMBER(S):	SC No 30114 of 2006
COUNSEL:	P: J K Kirk D: In person
SOLICITORS:	P: I V Knight D: N/A
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	069041; 9042/154
LOWER COURT JUDICIAL OFFICER :	Deputy President Hennessy

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HALL J

WEDNESDAY 8 AUGUST 2007

No. 30114 of 2006

DIRECTOR GENERAL, DEPARTMENT OF COMMERCE v ROBERT CIANFRANO & ANOR

JUDGMENT

1 HIS HONOUR: These proceedings were listed for hearing in the Duty Judge’s list. There was no originating process filed in this Court by way of summons or otherwise. The background to the proceedings is set out below and it is sufficient at this point to observe that on 21 August 2006, the Administrative Decisions Tribunal of New South Wales (“the Tribunal”) in Appeal Panel Proceedings No. 069042, purported to make an order in the following terms for questions of law to be referred to this Court:-

“Order
On 21 November 2006, Appeal Panel made the following order:-
Pursuant to section 118 of the Administrative Decisions Tribunal Act 1997, the following questions of law arising in the appeal is referred to the Supreme Court for the opinion of the Court:-
1. Is the letter dated 16 November 2004 from Michael Coutts-Trotter, Director General, Department of Commerce to Mr Robert Cianfranco (sic) a notification under section 28(1)(b) of the Freedom of Information Act 1989 that the Department of Commerce does not hold documents which are not listed in the schedule attached to that letter?
2. Regardless of the answer to question 1, is a notification under s.28(1)(b) of the Freedom of Information Act 1989, that an agency does not hold a document, a determination which the Administrative Decisions Tribunal has jurisdiction to review?”

2 On 24 August 2006, the Registrar of the Administrative Decisions Tribunal wrote to the Registrar of this Court in the following terms:-

“On 21 August 2006, the Appeal Panel made an order pursuant to section 118 of the Administrative Decisions Tribunal Act 1997 referring to the Supreme (Court) a question of law for the opinion of the Court.
The order is enclosed for your attention.
The contact details for the parties are …”

3 The letter contained details of the appellant, the Director-General, Department of Commerce (referred to in this judgment as the Director-General), the first respondent to those proceedings, Robert Cianfrano and, as to the second respondent, Sydney Markets Limited.

4 There was confusion at the hearing of these proceedings as to whether or not the Tribunal on 21 August 2006 was constituted by Deputy President Hennessy, alone, or whether the Tribunal on that date comprised her Honour and two other members. I will refer later to this matter. It is sufficient to state that, following the hearing, my associate received a letter from the Crown Solicitor’s Office confirming that the order referred to in paragraph [1] was an order made by Deputy President Hennessy alone and that there were no other members sitting with her Honour at that time.

5 In these proceedings, leave was granted to the Director-General to file in Court the affidavit of John McDonnell sworn on 20 October 2006. There were no objections to the affidavit being filed and no objections were raised to the affidavit. The affidavit was taken as formally read.

6 Mr Cianfrano relied upon a document entitled “submissions in support of affidavit of Robert Cianfrano 16 November 2006”. He relied upon his own affidavit sworn on 16 November 2006 and it recites the history of the proceedings including, in particular, the decision of the Tribunal given on 27 June 2006 and the referral on 21 August 2006 of two questions purportedly pursuant to s.118 of the Administrative Decisions Tribunal Act 1997 (NSW) (“the Act”).

7 The written submissions to which I have referred relied upon by Mr Cianfrano largely deal with issues concerning the merits of the decision given on 27 June 2006.

8 Mr McDonnell exhibited to his abovementioned affidavit a number of documents by way of “background materials” which were marked “JKM-1”. These related to proceedings no. 043384, being an application made by the first defendant to the Administrative Decisions Tribunal for review of a determination by the Director-General to refuse access to documents originally sought by the first defendant by letter dated 25 September 2003 under the Freedom of Information Act 1989.

9 Mr McDonnell’s affidavit referred to the fact that, on 27 June 2006, the Tribunal, constituted by the President of the Tribunal, his Honour Judge O’Connor, delivered judgment in the proceedings determining that the Tribunal had jurisdiction to review a notification by the Director-General that it held no further documents under s.28(1)(b) of the Freedom of Information Act 1989.

10 On 25 July 2006, the Director-General filed a notice of appeal to the Administrative Decisions Tribunal Appeal Panel in respect of the decision of the Tribunal of 27 June 2006. This is said to be an “internal appeal” under Chapter 7, Part 1 of the Act.

History

11 Mr Cianfrano had originally made an application to the Department of Commerce under the Freedom of Information Act 1989 requesting documents in connection with the sale of the Sydney Markets at Flemington.

12 President O’Connor, a Judge of the District Court, made a decision as to whether or not particular documents fell within the freedom of information request and whether or not claims for exemption made by the department were sustainable claims. That decision is a decision commonly made by the Administrative Decisions Tribunal. It is not at issue in these proceedings.

13 These proceedings arise out of Mr Cianfrano’s objection regarding the Department’s response to his freedom of information application – specifically, whether or not the searches conducted by the Department were sufficient (the “sufficiency of search” issue). This was the subject of President O’Connor’s decision in the Administrative Decisions Tribunal on 27 June 2006, where his Honour determined that the Tribunal had jurisdiction to review a notification by the Director-General that it held no further documents under s.28(1)(b) of the Freedom of Information Act 1989. This confirmed the Administrative Decisions Tribunal decision in Beesley v Commissioner of Police, New South Wales Police Service [2000] NSWADT 52 (and I was advised subsequently in other Administrative Decisions Tribunal decisions), which had held that the Tribunal does have the requisite jurisdiction.

14 The Director-General applied for leave to appeal to the Administrative Decisions Tribunal Appeal Panel against the decision of 27 June 2006, claiming that the Administrative Decisions Tribunal does not possess the jurisdiction or the power to determine “sufficiency of search” issues.

15 On 21 August 2006 at a directions hearing the Appeal Panel constituted by Deputy President Hennessy purportedly made an order pursuant to s.118 of the Act, referring two questions of law arising in the appeal to the Supreme Court (both the order and questions were set out on p.36 of Mr McDonnell’s affidavit). A copy of the transcript of the directions hearing held on 21 August 2006 was tendered as an exhibit in the present proceedings and was marked as Exhibit ‘C’.

16 The matter was argued initially upon the basis that the order under s.118 of the Act had been made by Deputy President Hennessy sitting alone. In matters concerning an internal appeal within the meaning of the Act, one presidential judicial member may exercise interlocutory functions in accordance with s.24A of the Act. However, for reasons stated below I am of the opinion that that section deals with procedural matters and the order referring the questions under s.118 would not, in my opinion, be an “order or other decision” in relation to an “interlocutory function” as defined in s. 24A(1) or an “interlocutory issue” as referred to in that section.

17 During the course of argument, Mr Cianfrano said that on 21 August 2006, the Appeal Panel had in fact been constituted by Deputy President Hennessy and two other members who he believed were Emeritus Professor Blake and Mr Montgomery. I inquired of Mr Kirk, who appeared on behalf of the Director-General, as to whether she agreed with Mr Cianfrano in this respect notwithstanding that the transcript Exhibit ‘C’ indicated to the contrary. She responded, “my instructing solicitor agrees, there were certainly three members sitting, I had not appreciated that” (transcript p.26). As recorded in paragraph 4, that was not the position.

18 A reference of a question of law under s.118 must be a reference by an Appeal Panel determining an appeal under Part 1 of the Act. Accordingly, an issue raised in this matter was whether or not the order purporting to refer the questions had been made by a properly constituted “Appeal Panel” within the meaning of that section.

19 Section 4(1) of the Act defines Appeal Panel, in relation to an “internal appeal”, as an Appeal Panel of the Tribunal constituted in accordance with s.24 (see s.4(1), Definition).

20 Section 24 states that in exercising its functions in relation to an internal appeal, the Tribunal is to be constituted by an Appeal Panel constituting by at least three members assigned by the President to the Panel for the purpose of the proceedings.

21 In accordance with s.24(2), an Appeal Panel constituted under s.24 must include:-

(a) one presidential judicial member (whether or not the member is a Division member of the Division in which the decision under appeal was made); and

(b) one other judicial member who need not be a Division member of the Division in which the decision under appeal was made unless the presidential judicial member is not such a Division member; and

(c) one non-judicial member who is such a Division member.

22 On the information referred to in paragraph [4] above, the Tribunal was not constituted in accordance with s. 124 as it was constituted on 21 August 2006 only by Deputy President Hennessey. I will return to this aspect below.

The main issue in the “internal appeal” proceedings and in the present proceedings

23 The main issue in these proceedings and in the “internal appeal” proceedings in the Tribunal is whether or not the Administrative Decisions Tribunal possesses the requisite jurisdiction to determine “sufficiency of search” issues. As submitted by counsel for the Director-General (transcript p 4), the “sufficiency of search” issue is a primary matter. Counsel for the Director-General stated:-

“It is the position of the Director-General that the Tribunal, as opposed to the Ombudsman, does not have jurisdictional power to determine the sufficiency of search issue. Put in another way, the Tribunal is given power and jurisdiction to determine whether or not an exemption should be upheld or whether documents should be released and certain other matters connected with such determinations. But as to a dispute about whether or not an agency holds the document, in other words if the agency says we don’t have that document or that type of document and the applicant says I don’t believe you, we say that does not fall within the power of jurisdiction of the Tribunal to determine.”

24 A determination of the Tribunal’s jurisdiction and/or power is a matter of statutory construction and therefore raises a question of law.

25 The matter referred to in paragraph [23] is said to be one of significance to the Tribunal and to other State agencies dealing with the Tribunal under freedom of information legislation. “Sufficiency of search” disputes were said to arise not infrequently. It was contended on behalf of the Director-General that there is, accordingly, a need for an authoritative determination in the Supreme Court as to whether or not the Tribunal has jurisdiction to deal with such disputes.

26 The Director-General has agreed that if successful on the abovementioned questions of law in the Supreme Court, costs will not be sought from the defendant, Mr Cianfrano.

27 In relation to the issues raised in the present proceedings, it is desirable to provide the context from which they have emerged and to do so by recording some observations in relation to the decision of the President of the Tribunal, his Honour, Judge K P O’Connor dated 27 June 2006.

28 In essence, that decision dealt with the question of the Tribunal’s jurisdiction in relation to what is referred to as “sufficiency of search”. The decision addressed an objection by the Director-General, Department of Commerce as the respondent agency to the Tribunal further considering the application of Mr Cianfrano for a full review of a determination made under the Freedom of Information Act 1989. His Honour referred to the history of the applicant’s (Mr Cianfrano) access to documents and the subsequent dispute dealt with in an earlier decision of the Tribunal: Cianfrano v Director-General, Department of Commerce & Anor [2005] NSWADT 282. The Tribunal in that decision ruled on the Department’s grounds for refusing access to various documents.

29 Judge O’Connor observed that the applicant contended that the Department’s reply to his access application did not identify all documents relevant to his request. He had asked the Tribunal to examine the sufficiency of the agency’s search. The Department as the relevant agency, objected that the Tribunal had no jurisdiction to deal with that issue. The second respondent to the proceedings, Sydney Markets Limited, was recorded as having appeared “on a watching brief basis” but made no separate submissions on the point addressed by the decision given on 27 June 2006.

30 Judge O’Connor recorded that the Tribunal had, for several years, proceeded upon the basis that it open to it to deal with an objection that an agency had not engaged in a sufficient search. In the past, the Tribunal had relied on a previous decision given in 2000 (Beesley (supra)). Judge O’Connor proceeded to examine the issue under the heading “revisiting ruling”. In the course of doing so, his Honour recorded the submission made on behalf of the Department that, on the question of whether the Tribunal had the power to examine the sufficiency or adequacy of the Agency’s search, s.28 of the Act was the relevant provision but that its provisions pointed against the Tribunal having such a power. The Department had contended that it was prepared to answer criticism of its handling of a request, but that the exclusive forum provided for by the Act was the Ombudsman, and not the Tribunal. It had also contended that it had identified all documents in its possession covered by the request. If, the applicant did not feel that he had been dealt with fairly then the Director-General contended, he must go to the Ombudsman.

31 Following a detailed review of relevant provisions of the Act and after examining certain provisions in the Victorian legislation, Judge O’Connor concluded that, if an applicant contends there has been a failure to locate relevant documents, then the Tribunal must decide whether the applicant is raising a s.24(2) question. His Honour referred to an earlier decision which underlined, he considered, the need for the Tribunal to satisfy itself always that the determination before it is a fully responsive determination. A failure by an agency to address all documents in its possession, he stated, can be properly characterised as a refusal of the kind referred to in s.24(2) of the Freedom of Information Act and is reviewable. His Honour observed that he considered that the function of s.24(2) in the scheme of that Act was to ensure that an agency fully determined an application and that a refusal was subject to the scrutiny of both internal and external review.

32 In the ultimate, Judge O’Connor dismissed the Department’s objection to jurisdiction and ordered that the Tribunal re-convene to make further directions as appropriate.

33 A “Notice of Appeal” was filed in the Tribunal on 25 July 2006 pursuant to s.112 of the Act. It asserted a number of errors of law and sought orders alternatively under s.118 of the Act referring “questions” of laws (in fact they were issues rather than questions raised in the notice) and alternatively orders under s.114(2)(a) and (c) of the Act.

The issues on this application

34 The Director-General submitted that these proceedings fall within the provisions of s.48 of the Supreme Court Act 1970. Initially it was submitted that the matter should be assigned to the Court of Appeal rather than being heard by a single member of this Court. However, later in the hearing, Mr Kirk of counsel, on behalf of the Director-General, stated that, on instructions, she withdrew her submission that the proceedings should be removed into the Court of Appeal, rather than be heard by a single judge. This was said to be upon the basis that the Director-General did not wish to give the appearance of “forum shopping”. Accordingly, the submission was that it was a matter for my discretion as to whether or not the matter should be removed into the Court of Appeal for hearing or be heard by a single judge of the Court.

35 Mr Kirk then referred, in the course of her submissions, to the decision of Dunford J Daykinv SAS Trustee Corporation & Ors (2001) 51 NSWLR 328.

36 In later submissions, Mr Kirk referred to the provisions of s.51(1)(b) of the Supreme Court Act (which deals with the power of the Court of Appeal or the Court in the Division to order that the proceedings be removed into the Court of Appeal). She also referred to the provisions of s.51(1)(d) which, subject to any order under paragraph (b), states that proceedings may be continued and disposed of in the Division. The submission was then made (transcript, p.24):-

“… our position, the position of the Director-General is, because it is assigned to the Court of Appeal on our submission by s.48, it is appropriately dealt with there but were your Honour to choose to deal with it under s.51(1)(d) and keep it in this Court, as I indicated we are not seeking to forum shop.”

37 This latter submission I find to be a somewhat unusual one, as the issue is not simply whether or not the Court of Appeal, as against a single judge of the Court, ought to hear the matter, although, ultimately that may become an important discretionary issue in terms of s.51(d) of the Supreme Court Act. The primary issue is whether or not the proceedings by virtue of the provisions of Part 3 of that Act in fact fall within s.48 and are accordingly assigned by s.48(2) to the Court of Appeal.

The provisions of s.48 of the Supreme Court Act

38 It is for the Director-General to establish that the requirements of s.48(1)(a) and (2) of the Supreme Court Act are satisfied. The Director-General submitted that the proceedings were proceedings in the Court and, accordingly, they fell within s.48(2) of the Act.

39 Section 48(1) provides that “specified Tribunal” means, inter alia:-

“(iv) The District Court or a judge of the District Court;
…
(vi) A judge or member functioning or purporting to function under any Act giving power to a judge or member, whether as judge or member or as designated person;
(vii) A body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as a designated person, …”

40 Section 48(2) provides that there are assigned to the Court of Appeal proceedings in the Court:-

“(e) For determining, by declaration or otherwise, any matter concerning the powers of a specified Tribunal,
…
(g) For otherwise reviewing the decision of a specified Tribunal,
(h) On a case stated by a specified Tribunal.”

Plaintiff’s submissions regarding s.48 Supreme Court Act 1970

41 The Director-General essentially argued that s.48 applied on the following grounds:-

• Although the order referring the two questions of law in this matter to the Supreme Court under s.118 of the Act was not an order made by the Tribunal constituted by a District Court Judge, and was, therefore, not a “specified tribunal”, the primary decision that has been appealed to the Appeal Panel was made by O’Connor DCJ, President of the Tribunal. Therefore, s.48(1)(a) is satisfied; and

• Assignment to the Court of Appeal may occur by virtue of either s.48(2)(e) or (g) of the Supreme Court Act 1970, each of which may be considered to apply to the present case.

(a) Section 48(2)(e): “for determining, by declaration or otherwise, any matter concerning the powers of a specified tribunal:

42 Section 48(2)(e) was submitted by the Director-General to apply because in essence the Supreme Court is being asked to determine (not by declaration but by answering questions of law) an important matter of principle concerning the powers of the Administrative Decisions Tribunal. It was contended that, although the second question involves the “jurisdiction” of the Administrative Decisions Tribunal, it also is necessarily directed to the powers available to the Tribunal. The distinction that has been drawn between “jurisdiction” and “powers” in some cases it was said does not preclude s.48(2)(e) from operating in this case.

43 In these proceedings, the Director-General submitted that this dispute concerned s.53 of the Freedom of Information Act, whether or not to grant right of review to the Tribunal in relation to matters within s.53(3).

44 It was further submitted that whilst distinctions can be drawn between “jurisdiction” and “power”, here the Director-General submitted in the context of these proceedings they are two halves of the same coin because jurisdiction necessarily implies power.

45 The questions referred to the Supreme Court it was submitted go to the core of the President’s decision itself (especially the second question referred to the Supreme Court).

(b) Section 48(2)(g): “for otherwise reviewing a decision of a specified tribunal”

46 The Director-General submitted that the Court is essentially being called upon to review a decision of the Administrative Decisions Tribunal (President O’Connor’s decision of 27 June 2006) and was not attempting to have an abstract question of law answered. Specific questions of law have been referred to the Court and these questions arise in an “internal appeal” from the decision of the President of the Administrative Decisions Tribunal and go to the heart of that appeal. It was contended that the referral under s.118 of the Act was an expeditious means of obtaining an authoritative determination by the Supreme Court of an important issue.

47 An appeal from a decision of an Administrative Decisions Tribunal Appeal Panel to the Court of Appeal arises by virtue of s.119 of the Act. However, s.48(2) does not expressly provide for the assignment of questions of law arising in an appeal to an Appeal Panel which is pending to the Court of Appeal. However, it was contended that the terms of s.48(2)(g) may be construed as conferring on the Court of Appeal jurisdiction to review a decision, in this case that of President O’Connor in relation to a point of law.

48 The Director-General submitted that the overall purpose of the s.48(2) categories should be looked at, and they should be seen as an attempt to capture the various proceedings concerning a case that may come to a specified Tribunal. The Director-General contended that it would be anomalous that an appeal, a case stated, or judicial review proceedings could go directly to the Court of Appeal, but that a question of law in a decision of the presidential judicial member cannot go to that Court. The plaintiff submitted that s.48(2)(g) “for otherwise reviewing a decision of a specified tribunal” is a residuary clause that would encompass the present proceedings.

49 Mr Cianfrano, who appeared self-represented, in a facsimile dated 24 January 2007 (Exhibit 1), stated:-

“As a lay person, I see nothing which would suggest that the Supreme Court doesn’t have the jurisdiction to hear this matter.
Furthermore, I have made arrangements to (sic) my travel to Sydney. And this very late date; I can see no legitimate reason why the date should be vacated. As such, I oppose the application request for the date to be vacated.”

50 The defendant’s submissions largely dealt with the merits of the case and not the antecedent point as to whether or not the proceedings were, by reason of the Supreme Court Act, assigned to the Court of Appeal. The general thrust of his submissions emphasised that the Administrative Decisions Tribunal appeal process should involve expediency and keeping costs to a minimum.

51 Mr Cianfrano’s principal concern was whether the Department of Commerce had sufficiently searched for the documents he had requested and whether the Administrative Decisions Tribunal had jurisdiction to deal with this issue, not whether this matter should be or was by force of the Supreme Court Act assigned to the Court of Appeal.

Determination

52 This issue raised by the Director-General is to be firstly determined in light of the provisions of s.118 of the Act, which provides as follows:-

“118. References of questions of law to Supreme Court
(1) An Appeal Panel determining an appeal under this Part may, of its motion, or at the request of a party, refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court.
(2) The Supreme Court has jurisdiction to hear and determine any question of law referred to under this section.
(3) If a question of law arising in any appeal to an Appeal Panel has been referred to the Supreme Court under this section, the Appeal Panel is not:-
(a) to give a decision in the appeal to which the question is relevant while the reference is pending, or
(b) to proceed in the manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.”

53 The questions arising in the appeal before the Appeal Panel involve matters concerning the powers of the Tribunal. I am of the opinion, subject to one particular matter concerning the purported order made under s.118 of the Act for referral of the questions to the Supreme Court, that at least the second question could be classed as proceedings for determining a “… matter concerning the powers of” the Tribunal under s.48(2)(e). That question could be said to relate to such a “matter”, being a matter as to the statutory power under the Act on the issue of “sufficiency of search” as determined and found by his Honour Judge O’Connor who constituted a “specified tribunal” as defined in s.48(1) of the Supreme Court Act.

54 The particular qualification to which I have referred in the preceding paragraph is whether an Appeal Panel as defined in s.4(1) in fact and in law properly exercised the power on 21 August 2006 to refer a question of law to the Supreme Court in accordance with the provisions of s.118 of the Act. As observed in paragraph [4] above, the order under s.118 was purportedly made by Deputy President Hennessy. This is not a mere technicality. It is an issue that determines whether there are “proceedings in the Court” within the meaning of that expression in s.48(2) of the Supreme Court Act.

55 The power of the Supreme Court to provide its opinion on a question of law referred to in s.118(1) of the Act is dependent upon “an Appeal Panel” making a determination in respect of internal appeals under Part 1 in Chapter 7, Appeals, of the Act (either of its own motion or at the request of a party) to refer a question of law arising in the appeal: s.118(1). The decision as to whether or not to refer a question of law is not a decision on a mere matter of procedure. Nor is it to be taken as involving a determination that will be made as a matter of course in respect of internal appeals. No doubt, an Appeal Panel, properly constituted in accordance with s.24 of the Act, will examine the nature of the question of law and, in particular, such matters as the Panel considers relevant to the determination. These may, for example, include matters such as the importance of the particular question of law before a decision is made to refer it under the section.

56 In the present case, however, it is clear that there has been no determination made by an Appeal Panel properly constituted under the Act under the provisions of s.118(1). The referral, as earlier noted, was made by Deputy President Hennessy who, sitting alone, could not, in terms of the Act, constitute an Appeal Panel in relation to an internal appeal. This point, it is noted, was not raised by those appearing on 21 August 2006. The provisions of s.24 specify how an Appeal Panel for such an appeal is to be constituted. The Tribunal comprising Deputy President Hennessy on 21 August 2006 when the order was made did not constitute an Appeal Panel within the meaning of the Act. Accordingly, there could have been no valid referral of the question of law under s.118(1) to this Court as purportedly done on that date. The purported referral in this case was accordingly a nullity.

57 The Act does, as earlier noted, provide for the exercise of interlocutory functions: see s.24A. That provision sets out in (a) to (i) particular matters that fall within the expression “interlocutory functions”. Section 24A(2) specified the interlocutory functions that may be exercised by the Tribunal constituted by a single member of it. By reason of the need for a determination of the substantive matters to which I have earlier referred in determining whether a question of law should be referred under s.118, I do not consider that an order under the latter provision could be construed as involving an interlocutory function under s.24A.

58 I have indicated in paragraph [53] that, had there in fact been a determination by an Appeal Panel in accordance with s.118(1) referring the questions of law to this Court, then such questions would, in my opinion, fall within the provisions of s.48(2)(e) of the Supreme Court Act and, accordingly, on that basis would, by virtue of that section, be assigned to the Court of Appeal.

59 Given that, as I have earlier stated, there has not been a proper reference of a question of law under s.118(1), it would seem that in order for the particular questions to be assigned to the Court of Appeal in due course, there would need to be a reference made by an Appeal Panel in accordance with s.118(1).

60 In the event that such a determination under s.118(1) is made, then I record my opinion (there having been detailed submissions on the application of s.48) that, at least the second of the two questions would fall within the terms of s.48(2)(e) and would be a question that I consider as one appropriate for hearing by the Court of Appeal. Accordingly, the conclusions which I have stated on the above matters may facilitate the removal of any further proceedings into the Court of Appeal pursuant to s.51 of the Supreme Court Act, in the event that a determination is made by an Appeal Panel under and in accordance with s.118 of the Act.

61 In the circumstances, it is not open to me to make any order under s.51 of the Supreme Court Act.

62 I, however, grant liberty to the parties to make any submissions on ancillary orders, in light of the above reasons.

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09/08/2007 - Name of counsel for the plaintiff recorded incorrectly. - Paragraph(s) 17, 34, 35, 36