Johnston v Department of Education and Training (GD)

[2007] NSWADTAP 53

Pending Appeal:

Appeal Panel - Internal

CITATION:	Johnston v Department of Education and Training (GD) [2007] NSWADTAP 53
PARTIES:	APPELLANT Phillip Johnston RESPONDENT Department of Education and Training
FILE NUMBER:	079033
HEARING DATES:	6 September 2007
SUBMISSIONS CLOSED:	6 September 2007
EXTEMPORE DECISION DATE:	6 September 2007
DATE OF DECISION:	3 October 2007
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	leave to appeal interlocutory decision
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	063057, 063201, 063236, 063237, 063255
DATE OF DECISION UNDER APPEAL:	06/01/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004
CASES CITED:	Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
REPRESENTATION:	APPELLANT In person RESPONDENT Mr J McDonnell, solicitor, Crown Solicitor's Office
ORDERS:	Leavel to appeal an interlocutory decision refused. Appeal dismissed

REASONS FOR DECISION

1 HIS HONOUR: The appellant in these proceedings is Mr Johnston (appeal number 079033). He has applied for leave to appeal against an interlocutory decision of the Tribunal. The interlocutory decision is contained in the report with the same title as this case bearing the number [2007] NSWADT 117. There are two issues that he wishes to dispute.

2 The first is the Tribunal’s ruling that an order should be made excluding Mr McDonnell of the Crown Solicitor’s Office from appearing as a legal representative of the agency in the proceedings. As I understand it, Mr Johnston would prefer that, if there is to be legal representation in these proceedings, then it be provided by an officer from the legal section of the Department of Education and Training which is the agency.

3 The second point has to do with s 347 of the Legal Profession Act 2004 (the Act). He asserts that, in these proceedings, a certificate of the kind to which s 347 refers ought be lodged.

4 The Appeal Panel, when considering whether to grant leave should have regard to the kind of principles that Mr McDonnell referred that are derived from the Décor decision in the Federal Court (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9). The principle has been expressed in different cases in different terms but the way it is expressed in Décor seems to be adequate. That is, that leave ought not to be granted so as to disrupt the continuation of proceedings at first instance unless a substantial injustice can be shown as being likely to result if leave is refused.

5 It seems to me also that one needs to have regard to the strength or otherwise of the apparent merits of the points that are being raised. That is, to what extent are there any prospects of success of the appeal if and when it is heard.

6 As matters stand the lodgement or otherwise of a certificate has no bearing on the substantive determination of an FOI matter. In my own view, the ruling of the Tribunal below on its face is persuasive in that it is simply making the point that FOI proceedings do not involve claims for damages and therefore, the responsibility that is imposed upon legal practitioners by s 347(2) of the Act is not enlivened.

7 In any event, if it was enlivened, the requirement of a certificate does not bear on the substantive determination of the proceedings. It seems to me that there can be no prejudice to Mr Johnston in having the proceedings continued at first instance in the absence of such a certificate.

8 As to the other matter, the question of whether an order can be obtained under s 71 of the Administrative Decisions Tribunal Act 1997 (ADT Act), that matter is dealt with carefully and in some detail by the Tribunal below in its reasons. On their face they are persuasive.

9 I am inclined to the view that there is little or no merit in the point of appeal.

10 As to the matter of prejudice, it is again difficult to see what real prejudice can be demonstrated. Mr Johnston does not oppose the presence of a legal practitioner at the other end of the bar table. He says – I prefer a legal practitioner who is not from the Crown Solicitor’s Office; and further – I prefer one among several people I have named who are legal officers of the Department.

11 So, it really comes down to a question of whether or not a particular person from the legal profession should appear. I fail to see how that can be raised as a relevant prejudice in respect of the conduct of proceedings. Obviously, legal practitioners will vary as between each other as to the way in which they conduct matters. But that is not a sufficient reason to be disputing the presence of a particular individual. Mr Johnston, clearly from his submissions, is well aware of the rights that are available to him to exercise by way of complaint to relevant bodies if there is some aspect of professional incompetence in proceedings on the part of a legal practitioner; and those avenues exist outside the environment of the FOI proceedings in this Tribunal.

12 It seems to me that there is no relevant prejudice demonstrated; it is a matter of a truly procedural nature in terms of the conduct of the proceedings below.

13 The ruling of the Member below on its face is persuasive.

14 It is important that this Appeal Panel assert the importance of efficient progress of proceedings at first instance. Interlocutory applications of this kind compete with the desirability of efficiency in first instance proceedings and ought not lightly to be granted. Leave should be refused and therefore the appeal dismissed. That is my order.