Johnston v Department of Education and Training (GD)

[2007] NSWADTAP 6

Appeal Panel - Internal

CITATION:	Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6
PARTIES:	APPELLANT Phillip Johnston RESPONDENT Department of Education and Training
FILE NUMBER:	069070
HEARING DATES:	15/01/2007
SUBMISSIONS CLOSED:	15 January 2007
DATE OF DECISION:	22 January 2007
BEFORE:	Hennessy N - Magistrate (Deputy 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:	10/04/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Supreme Court Act 1970
CASES CITED:	Cianfrano v Director-General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 Coulter v R (1988) 164 CLR 350 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 Re R [2000] NSWSC 886
REPRESENTATION:	APPELLANT In person RESPONDENT K Mattes, solicitor
ORDERS:	Application for leave to appeal against an interlocutory decision refused

Background

1 Mr Johnston has appealed against a decision of Judicial Member Pearson to refuse to disqualify herself for bias. He says that Judicial Member Pearson displayed actual, rather than apprehended, bias but given that Mr Johnston is not legally represented, and may not have appreciated the difficulty in establishing actual bias, I have taken his submission to include apprehended bias.

2 The decision under appeal relates to five applications made by Mr Johnston under the Freedom of Information Act 1989 (FOI Act) against the Department of Education and Training (the Department). In each of those applications Mr Johnston asserted, among other things, that the Department had not fully complied with his request. That assertion gives rise to the question of whether the Department has adequately searched for all the documents Mr Johnston requested: see Cianfrano v Director-General, Department of Commerce & Anor (No 2) [2006] NSWADT 195. (The question of whether a notification under s 28(1)(b) of the FOI Act, that an agency does not hold a document, is a determination which the Administrative Decisions Tribunal has jurisdiction to review, is currently before the Supreme Court.)

3 In a planning meeting on 1 September 2006 Mr Johnston requested that Judicial Member Pearson make an order under s 71(2) of the ADT Act directing that the Department could not be represented by the Crown Solicitor. Mr Johnson told the Appeal Panel that he did not object to the Department being represented by “in house” lawyers but objected to the resources of the Crown Solicitor’s Office being deployed to represent the Department. The Judicial Member declined to make that order and said she would provide written reasons when determining the substantive matter.

4 At the same planning meeting on 1 September 2006, Judicial Member Pearson directed that, by 14 October 2006, Mr Johnston file and serve in all five matters (plus another matter in which he was acting as agent for the applicant) a list of documents and places of inquiry which demonstrate the existence of further documents held by the Department within the scope of the request for access. Judicial Member Pearson says in the Reasons for Decision at [6] that she made that direction “... in order to obtain some ‘credible material or submissions’ to consider whether an arguable case exists, and also to assist the respondent in checking whether in fact there may be further documents which could be provided to the applicant.”

5 Mr Johnston applied for Judicial Member Pearson to disqualify herself for bias. The grounds for that application were that:

(a) the Judicial Member did not comply with Tribunal’s procedures because she did not determine, at the planning meetings, whether the Department should be given leave to be legally represented;

(b) the Judicial Member did not give him an opportunity to make submissions in support of his application that the Department not be given permission to be represented by the Crown Solicitor, nor did the Member agree to provide written reasons for that decision;

(c) the Judicial Member refused to grant his application that the Department not be represented by the Crown Solicitor;

(d) the Judicial Member’s direction that he file documents, is contrary to s 61 of the FOI Act, was unnecessary and led to further delay in the matter being set down for hearing;

(e) the Judicial Member’s comment at [3] of the decision that “A central issue in dispute in all these matters has been whether the respondent has undertaken an adequate search . . .” discloses that the Judicial Member did not correctly record the issues that arose in the Planning Meetings.

6 At the hearing, Mr Johnston also sought to rely on s 74(4) of the ADT Act which allows a party to object to a Tribunal Member from further participating in the proceedings in certain circumstances. Those circumstances are where that Member has been involved in a “preliminary conference” with the parties, but the conference has failed to resolve the matter. Although the parties made some brief submissions in relation to this provision, the application of s 74(4) is not a matter which arises in this appeal. A party may only appeal against an “appealable decision” of the Tribunal: ADT Act, s 113(1). The appealable decision in this case is the Tribunal Member’s decision not to disqualify herself for bias. The Tribunal has not made an “appealable decision” in relation to the application of s 74(4) because neither party has previously asserted that that provision prevents the Tribunal Member from continuing to participate in the proceedings.

Issue

7 The issue for determination is whether the Appeal Panel should give leave for Mr Johnston to proceed with an appeal against the Tribunal’s interlocutory decision. The Judicial Member’s decision to refuse to disqualify herself for bias is an interlocutory decision and requires the Appeal Panel to give its permission before it can proceed: ADT Act, s 113( 2A).

Legal principles in relation to the granting of leave

8 The legal principles in relation to the granting of leave to appeal against an interlocutory decision can be gleaned from the way courts have interpreted provisions analogous to s 113(2A) of the ADT Act. For example, s 101(2)(e) of the Supreme Court Act 1970 provides that: "An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order ..." The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. Similarly the leave requirement in s 113(2A) of the ADT Act is designed to restrict access to appeals before the Appeal Panel. The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: see Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 175.

9 Nevertheless, the general rule is that leave is not granted unless a substantial injustice would result if leave were refused and the decision is attended with sufficient doubt to warrant it being reconsidered by an appeal body: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9; Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364. To amount to a substantial injustice, the appeal must have some prospect of success. Where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8].

Substantial injustice – prospects of success

10 Substantial injustice? The injustice that Mr Johnston is attempting to avoid by appealing against the Judicial Member’s decision is the injustice of having his matter determined by a Member who he says is biased. Refusing Mr Johnston leave to appeal against the Member’s decision may result in that Member hearing and determining his substantive application. If that occurs, and Mr Johnston wishes to appeal against the decision, on the ground of actual or apprehended bias, he will be at liberty to do so. Disqualification of the Member at this stage will not undo the directions or decisions that have already been made in relation to legal representation and the filing of documents. In those circumstances, the refusal of leave would not result in a substantial injustice, especially when the prospects of success of the appeal are also taken into account.

11 Prospects of success. Mr Johnston has a right to appeal on a question of law. He agreed that Judicial Member Pearson had correctly identified the legal principles relating to apprehended bias. Nothing was said in the Tribunal’s decision about actual bias because Mr Johnston raised that allegation for the first time at the hearing before the Appeal Panel. In those circumstances, it is doubtful that Mr Johnston has identified a question of law and an appeal under s 113(2)(a) has very little prospects of success. Mr Johnston is also entitled to appeal against the merits of the Tribunal’s decision, if the Appeal Panel grants leave for him to do so. The merits of the Tribunal’s decision concern the fact-finding process and the application of the law to the facts. One basis for the Appeal Panel extending the appeal to the merits of the Tribunal’s decision would be where the Tribunal has gone about the fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Mr Johnston did not point to anything of that nature in the Tribunal’s decision. Indeed there was very little dispute about any question of fact.

12 Case management procedures. Mr Johnston’s concern relate to the case management procedures adopted by the Judicial Member and the directions and rulings she made. He said that Judicial Member Pearson did not comply with Tribunal’s procedures because she did not determine, at the planning meetings, whether the Department should be given leave to be legally represented. Contrary to Mr Johnston’s understanding, there is no requirement for lawyers to obtain leave before appearing for a party in proceedings in the General Division of the Tribunal.

13 Mr Johnston’s second concern is that the Judicial Member did not give him an opportunity to make submissions in support of his application that the Department not be given permission to be represented by the Crown Solicitor, nor did the Member agree to provide written reasons for that decision. I understand that Mr Johnston made the application under s 71 during the course of a planning meeting. That meeting was not recorded, so there is no direct evidence of the extent to which Mr Johnston was permitted to make oral submissions in support of his application. If Mr Johnston alleges that he has been denied procedural fairness, in relation to the making of a decision pursuant to s 71, then the appropriate course would be to appeal against that decision and rely on a breach of procedural fairness as a ground of appeal.

14 Mr Johnston’s third concern is that the Judicial Member refused to grant his application that the Department not be represented by the Crown Solicitor. He said that such representation lead to a power imbalance in circumstances where he was not a lawyer, nor was he legally represented. Section 71(1) and (2) state that:

(1) A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an agent, or

(c) if the party is an incapacitated person—be represented by such other person as may be appointed by the Tribunal under subsection (4).

(2) Despite subsection (1), the Tribunal may order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so.

15 Mr Johnson’s understanding of s 71(2) was that Judicial Member Pearson could refuse permission for the Crown Solicitor to represent the Department because the Crown Solicitor is a “class” of agent. Mr Johnson also submitted that s 71 gave the Tribunal power to prevent the Crown Solicitor from representing the Department on any basis, not just for the purpose of making oral submissions. The correctness of these submissions are not matters that the Appeal Panel needs to address in these proceedings. However, if Mr Johnston maintains that the Judicial Member has made an error in refusing his application, then the appropriate course is to appeal against that decision.

16 Mr Johnston’s next concern was that the Judicial Member’s direction that he file documents, is contrary to s 61 of the FOI Act, unnecessary and led to further delay in the matter being set down for hearing. While the ultimate burden of proving that a determination is justified lies on the agency under s 61, an applicant has an evidentiary onus to identify the basis for an adequacy of search claim: Cianfrano v Director-General, Department of Commerce & Anor (No 2) [2006] NSWADT 195 at [69]. Mr Johnston said in relation to the first two applications that the NSW Ombudsman had confirmed in writing that further documents existed. He also said in relation to the third and fifth matters that documents provided to another person pursuant to a similar request under the FOI Act proved that other documents existed which fell within the scope of his request. Finally, Mr Johnson said in relation to the fourth matter that the documents provided to him demonstrate the existence of further documents. Although Mr Johnston maintained that there was sufficient evidence of inadequate search before the Tribunal, it is consistent with the rules of procedural fairness for the Tribunal to make a direction that Mr Johnston identify that evidence in writing so that the Department was on notice of exactly what he was asserting.

17 Finally, Mr Johnston expressed concern about the Judicial Member’s comment at [3] of the decision that “A central issue in dispute in all these matters has been whether the respondent has undertaken an adequate search ...” He says that that comment discloses that the Judicial Member did not correctly record the issues that arose in the Planning Meetings. As I said at [2] above, in each of his applications Mr Johnston asserted, among other things, that the Department had not fully complied with his request. Those assertions gives rise to the question of whether the Department has adequately searched for all the documents Mr Johnston requested. If adequacy of search is not an issue in relation to each of the five matters, Mr Johnston should formally advise the Tribunal of that fact.

Conclusion

18 Mr Johnston has appealed against the Tribunal’s decision not to disqualify itself on the ground of bias, from hearing and determining his five applications under the FOI Act. I have refused Mr Johnston permission to appeal against that decision. The reasons for that refusal are that an appeal would not undo the directions and orders that the Tribunal has already made and Mr Johnston is still able to appeal against the Tribunal’s substantive decision if he is of the view that the Tribunal Member is biased. More importantly an appeal has very little prospects of success either on a question of law or in relation to the merits of the Tribunal’s decision. Mr Johnston’s concerns about the case management of his matters or the directions and interlocutory decisions the Tribunal has made, do not persuade me that he should be allowed to appeal at this stage.

Orders

19 Application for leave to appeal against an interlocutory decision refused.