McGuirk v University of New South Wales
[2009] NSWADTAP 11
•4 March 2009
Appeal Panel - Internal
CITATION: McGuirk v University of New South Wales [2009] NSWADTAP 11 PARTIES: APPELLANT
RESPONDENT
Michael McGuirk
University of New South WalesFILE NUMBER: 069056 HEARING DATES: 21 November 2008 SUBMISSIONS CLOSED: 21 November 2008
DATE OF DECISION:
4 March 2009BEFORE: Hennessy N - Magistrate (Deputy President); Fitzgerald K - Judicial Member; Mooney L - Non-Judicial Member CATCHWORDS: Application to re-open decision, jurisdictional error DECISION UNDER APPEAL: McGuirk v University of New South Wales [2007] NSWADT 64 FILE NUMBER UNDER APPEAL: 069056 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Interpretation Act 1987CASES CITED: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277
Attorney General for NSW v Klewer [2003] NSWCA 295
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577
Allianz Australia Insurance Ltd v Crazzi (2006) 47 MVR 74Jones v R (1989) 166 CLR 409
Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117
Kuru v State of New South Wales [2008] HCA 26; (2008) 246 ALR 260
Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311
Craig v South Australia (1995) 184 CLR 163
Trust Company of Australia Limited (Trading As Stockland Property Management) v Skiwing Pty Ltd (Trading As Café Tiffany's) [2006] NSWCA 185REPRESENTATION: APPELLANT
RESPONDENT
In person
P Singleton, barristerORDERS: The application to re-open the Appeal Panel’s decision in McGuirk v University of New South Wales [2007] NSWADT 64 is refused.
REASONS FOR DECISION
Introduction
1 Mr McGuirk has applied to the Appeal Panel to re-open a previous Appeal Panel decision handed down on 7 November 2007 – McGuirk v University of New South Wales [2007] NSWADT 64. In that case the Appeal Panel found that the Tribunal did not have jurisdiction to review a decision made by the University under the Freedom of Information Act 1989 (FOI Act) to refuse to continue to deal with his application. The Appeal Panel regarded that error as decisive and decided that it was unnecessary to consider any of the remaining grounds of appeal. The Appeal Panel remitted the matter to the Tribunal to review a later decision made by the University. Mr McGuirk submitted that the Appeal Panel was obliged to determine his application for documents under the FOI Act rather than remit the matter to the Tribunal. He also said that the Appeal Panel was obliged to address all his grounds of appeal including that the Judicial Member who presided over the first Tribunal hearing, Mr Montgomery, should be disqualified for actual or apprehended bias.
Preliminary applications
2 Application for adjournment and for costs. Mr McGuirk applied for the hearing to be adjourned and for costs to be awarded in his favour because the University had not complied with directions that they file any submissions on or before 2 November 2008. The submissions were filed on the day of the hearing. Mr McGuirk said that the University's failure to comply with the Appeal Panel's directions prejudiced him. Mr Singleton, representing the University, said that he had overlooked the need to file the submissions and that one reason for that was that he had been distracted by several e-mails Mr McGuirk had sent to him. He tendered those e-mails and they were admitted into evidence over Mr McGuirk's objection. We accepted the e-mails both as an explanation as to why Mr Singleton may have been distracted and in the context of an application by the University that the Tribunal report Mr McGuirk's conduct to the Supreme Court for contempt pursuant to s 131 of the ADT Act.
3 Application refused. We refused Mr McGuirk's applications for an adjournment and for costs. The application for adjournment was refused because Mr McGuirk was not unduly prejudiced by the late receipt of the University’s submissions. Those submissions were short and Mr McGuirk had an opportunity to read them in the course of the hearing and during the course of a short adjournment. In addition, the University supported Mr McGuirk's substantive application to a significant extent. Having refused the adjournment there was no basis on which Mr McGuirk was entitled to costs.
4 Application to disqualify for bias. Mr McGuirk’s second preliminary application was an application for Magistrate Hennessy and Judicial Member Fitzgerald to disqualify themselves for bias in these proceedings. In support of that application he referred to previous decisions of the Appeal Panel as evidence that the Appeal Panel makes inconsistent decisions and fails to report improper conduct to the Minister pursuant to s 58 of the FOI Act. He said that Ms Fitzgerald should disqualify herself because in a previous hearing she had “sniggered” at him and “distracted” Magistrate Hennessy. He said that the Appeal Panel has exhibited systemic bias in favour of agencies and individual bias against him because it has consistently failed to perform its duties under the FOI Act. He referred to the Tribunal's web site which, he said, discloses a pattern of pro-agency decision-making. Mr McGuirk quoted the following passage from Aronson & Ors, Judicial Review of Administrative Action, 3rd edition, Lawbook Co 2004 at p 570:
The bias rule is also not equipped to handle complaints of systemic bias.
5 Response to application. In response to Mr McGuirk's application for disqualification for apprehended bias Mr Singleton said that the test is whether “a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. He said that there needed to be firm evidence to establish bias and Mr McGuirk had not tendered any material in support of his assertions.
6 Application refused. Any pre-judgement on the part of the decision maker must be "firmly established". In Attorney General for NSW v Klewer [2003] NSWCA 295, the Court of Appeal (Davies AJA, Mason P and Meagher AJA agreeing) noted these comments and added at [15] that:
Unsubstantiated allegations . . . made by disappointed litigants provide no basis upon which a judicial officer, who has been allocated to a particular matter, should recuse.
7 We do not agree with Mr McGuirk’s characterisation of Ms Fitzgerald’s behaviour in a previous hearing as “sniggering” at him or as “distracting” Deputy President Hennessy. In our view nothing Ms Fitzgerald did in the hearing or in previous hearings constitutes apprehended or actual bias. In the absence of any substantiation of the allegations against Deputy President Hennessy, the application for her to disqualify herself for bias is also refused.
Background to application to re-open matter
8 Mr McGuirk applied to the University of New South Wales for certain documents under the FOI Act. The material he requested was correspondence between the University and the Crown Solicitor’s Office, or barristers briefed by that office. The correspondence related to a private prosecution that Mr McGuirk had brought against five employees, or former employees, of the University for alleged breaches of the Protected Disclosures Act 1994. Mr McGuirk requested the correspondence relating to the legal costs associated with the defence of that prosecution.
9 The University made, or was deemed to have made, three decisions in response to this application:
1) the original decision made on 6 April 2005 to refuse to continue to deal with the application because the advance deposit was not paid within the specified time;
3) the delayed decision headed "internal review" made on 5 May 2005 that the University should refuse to continue to deal with the application unless the University receives payment of the advance deposit amount ($660) by 10 May 2005.2) the deemed decision made in late April 2005 to refuse access to the requested documents following an application for internal review which had not been responded to within 14 days: FOI Act , s 34(6); and
10 We refer to these decisions as the original, the deemed and the delayed decisions respectively. The Tribunal treated the original decision as the reviewable decision and made the following orders:
1. The decision under review is set aside.
2. Mr McGuirk is to pay an advance deposit of $270 to the University within 14 days of these orders.
3. The matter is to be listed for further hearing on a date to be fixed by the Registry.
6 Mr McGuirk appealed to the Appeal Panel against these orders. One of his many grounds of appeal was that Mr Montgomery, the Tribunal member hearing the application, was biased in favour of the agency. In his written submissions he said that:
Actual bias – or in the alternative apprehended bias – on the part of the Judicial Member who dealt with this matter. It is not contended that Montgomery JM is biased against me personally. . . . The nature of the bias which I am alleging against Montgomery JM is pro agency bias. The question as to whether such bias exists – or might reasonably be apprehended to exits – is an objective one. It is to be doubted, given the structure of the Tribunal and the collegiate nature of the relationships among members of the Tribunal, whether the Tribunal is reasonably able to bring an objective mind to the determination of questions as to whether Montgomery JM has demonstrated a pro-agency bias. If this is not possible, the appropriate course of action for the Appeal Panel is to refer this matter to the Supreme Court.
11 As well as appealing on questions of law, Mr McGuirk also applied for leave for the appeal to be extended to the merits of the Tribunal’s decision: ADT Act, s 113(2).
12 The Appeal Panel concluded that the Tribunal had made an error of law in purporting to review the original decision. The original decision was not a decision that the Tribunal had jurisdiction to review. The Appeal Panel concluded at [38] that:
That error made a fundamental difference to the decision the Tribunal made. Had the Tribunal reviewed the deemed internal review decision, it would not have been able to exercise the function of requesting an advance deposit. This conclusion makes it unnecessary to consider any of the remaining grounds of appeal . (Emphasis added)
13 The Appeal Panel made the following orders:
1. The Tribunal’s orders are set aside.
2. The matter is remitted to the Tribunal to review the deemed decision to refuse access to the requested documents.
14 The Tribunal has not yet determined that matter.
Statutory framework
15 Chapter 7, Part 1 of the ADT Act deals with internal appeals. Section 113 gives a party a right to appeal against certain decisions of the Tribunal:
1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
(2) An appeal under this Part:
(a) may be made on any question of law, and
(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
16 Section 112(3) specifically excludes from the definition of “appealable decision” a decision of an Appeal Panel.
17 The powers of the Appeal Panel when hearing an appeal on a question of law are set out in s 114 of the ADT Act:
(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal. (Emphasis added)
18 Section 115 deals with an application for leave to extend an appeal to the merits of the Tribunal’s decision:
(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.
(3) In determining any such appeal, the Appeal Panel may decide:
(a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.
19 Section 118(1) gives an Appeal Panel determining an appeal power to refer a question of law arising in the appeal to the Supreme Court for the opinion of the Court. Section 119 gives a party to proceedings before an Appeal Panel the right to appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel.
Mr McGuirk’s submissions
20 Mr McGuirk applied for the Appeal Panel to re-open its decision. That application was made on two bases. Firstly he submitted that having found that the Tribunal had jurisdiction to review the deemed determination, the Appeal Panel was obliged to “hear and determine the appeal”: ADT Act, s 114. He said that rather than remitting the matter, the Appeal Panel should have proceeded to determine whether the deemed decision to refuse access to the documents he had requested was the correct and preferable decision: ADT Act, s 63 and s 73(5)(a). He said that there was only one order that was properly open to the Appeal Panel in respect of the substantive matter (the question of access to the documents sought) and that was to order the release of all those documents.
21 The second basis for applying for the Appeal Panel to re-open its decision was that the Appeal Panel was under an obligation to determine all the questions of law in the Notice of Appeal filed on 12 September 2006 and it had failed to do so. As authority for that proposition, Mr McGuirk quoted Kuru v State of New South Wales [2008] HCA 26; (2008) 246 ALR 260 in which Gleeson CJ, Gummow, Kirby and Hayne JJ noted at 263 that:
. . . although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground.
University’s submission
22 Mr Singleton, representing the University, said that the Appeal Panel failed to determine whether to extend the appeal to the merits of the Tribunal’s decision. If the Appeal Panel had addressed that issue and decided to extend the appeal to the merits it would then have been in a position to resolve the matter. Mr Singleton said that, contrary to Mr McGuirk’s submission, it was not the Appeal Panel's role to determine whether the University had made the correct and preferable decision unless the Appeal Panel extended the appeal to the merits of the Tribunal's decision. On the second matter, Mr Singleton said that the Appeal Panel did not finish the job of dealing with each question of law as required by Jones v R (1989) 166 CLR 409. In that case the High Court held that a court of Criminal Appeal must hear and determine each ground of appeal which is raised and argued unless the ground is untenable or the party raising it succeeds on another ground. Mr Singleton submitted that Mr McGuirk was entitled to a full disposition of the case and that the Appeal Panel had failed to consider whether the Tribunal was biased. He said that the Appeal Panel as presently constituted should deal with the bias issue and add it to the existing judgement.
Should the Appeal Panel re-open its decision and “determine the appeal”?
23 Contrary to Mr McGuirk’s submission, the obligation on the Appeal Panel in s 114 to “determine the appeal” does not mean that the Appeal Panel is obliged to determine the merits of the applicant’s application for documents under the FOI Act. It would only be appropriate to do so in circumstances where the Tribunal had determined the application on its merits and the Appeal Panel had given leave under s 113(2) for the appeal to be extended to the merits of the Tribunal’s decision. In our view, having found an error of law relating to jurisdiction, the Appeal Panel made a decision that it had power to make under s 114, that is to set aside the Tribunal’s decision and remit the matter to the Tribunal to review a different decision. We decline to make an order that the Appeal Panel re-open its decision and determine the merits of Mr McGuirk’s application under the FOI Act.
Should the Tribunal re-open its decision to consider whether to grant leave to extend the appeal to the merits of the Tribunal’s decision?
24 The question of whether leave should be granted for the appeal to extend to the merits of the Tribunal’s decision did not arise in the proceedings before the Appeal Panel. The Appeal Panel found that the Tribunal did not have jurisdiction to review the decision it purported to review. Therefore, the Tribunal’s determination of the merits of that decision (ordering Mr McGuirk to pay an advance deposit of $270 to the University within 14 days) was no longer of any effect. The Appeal Panel can only extend an appeal to the merits of the Tribunal’s decision when the Tribunal has itself determined the merits of a decision that is within its jurisdiction to review. As it had not done so in this case the question of giving leave to extend the appeal to the merits of the Tribunal’s decision simply did not arise.
25 Mr McGuirk appears to have appreciated the correctness of this proposition in his written submissions dated 20 September 2000 at [36] where he said:
However, as the Appeal Panel found, Montgomery JM at first instance did not consider the right question (itself an error of law), which means that no question of the merits of his decision can arise.
26 Mr McGuirk added that, “Pursuant to s 114 of the ADT Act, the Appeal Panel was required to ‘determine the appeal’.” We have dealt with that submission.
Should the Tribunal re-open its decision to consider the grounds of appeal that it decided were unnecessary for it to consider?
27 The Appeal Panel decided, given its finding that the Tribunal had purported to review a decision that it did not have jurisdiction to review, that it was “unnecessary to consider any of the remaining grounds of appeal.” Both parties submitted that we should re-open the Appeal Panel’s decision and deal with the outstanding grounds of appeal.
28 We accept that there is authority for the proposition that it is important for courts and Tribunals determining appeals to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. However neither Kuru v State of New South Wales [2008] HCA 26; (2008) 246 ALR 260 nor Jones v R (1989) 166 CLR 409 is authority for the proposition that the Tribunal may re-open a decision in which it has not dealt with one or more grounds of appeal. Those cases did not include any consideration of the court’s power to re-open its own decisions.
29 We accept that where there are allegations of bias, as well as other grounds of appeal, the bias issue should be dealt with first: Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; [2006] HCA 55 at [2]–[3], [117]- [172]. That is because, if the allegation of bias is made out, the matter should be remitted to a differently constituted Tribunal to re-determine regardless of whether the other grounds of appeal are successful. On the basis of this authority it is arguable that the Appeal Panel was incorrect when it concluded that it was unnecessary to consider the ground of appeal alleging bias. We have assumed, for the purposes of these proceedings that the Appeal Panel made an error of law by deciding that it was not necessary to consider the ground of appeal relating to bias. We are not satisfied that it made an error of law by not considering any of the other grounds.
30 The general rule (known as functus officio) is that once a person or body has exercised a statutory power or duty, that person or body has no further authority to exercise it again. Some of the policy considerations underlying the general rule in the context of regulation of the medical profession were considered by the Victorian Court of Appeal in Kabourakis v the Medical Practioners Board of Victoria [2006] VSC 301 at [64] to [69]. Those policy considerations include the uncertainty that would arise and the possibility that a decision maker could change a decision many times, even years after the original decision had been made.
31 The power to re-open a decision depends, to a great extent, on the statutory framework in which the person or body operates. We have outlined the relevant provisions at [15] to [19] above. Importantly, a decision of the Appeal Panel cannot be appealed to the same or a differently constituted Appeal Panel: s 112(3). In addition to those provisions, s 87 of the ADT Act gives the Tribunal power to alter the text of a decision where there has been “an obvious error”. Neither party relied on the so-called “slip rule” and it does not apply to the circumstances of this case: Allianz Australia Insurance Ltd v Crazzi (2006) 47 MVR 74 at [129] to [148]. Nor did the parties rely on s 48 of the Interpretation Act 1987 which provides that “[I]f an Act confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.” In this case, the character of the power concerned is such that it is not exercisable from time to time but is exhausted once exercised.
32 The most authoritative statement of the law in relation to the circumstances in which a tribunal has power to re-open its decisions was made by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117. At 129 and 130 Gaudron and Gummow JJ (McHugh J agreeing) decided that:
. . . a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.
33 The High Court confined the duty to re-open a decision to circumstances where there has been a jurisdictional error. Errors of law can be jurisdictional or non-jurisdictional. There has been much debate about where to drawn the line between errors made within jurisdiction and errors made outside jurisdiction. Jurisdictional error includes circumstances where the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires). The difference between the two was discussed by the High Court in Craig v South Australia (1995) 184 CLR 163. In that case the High Court distinguished between inferior courts and tribunals exercising governmental powers. While it would not generally constitute a jurisdictional error for an inferior court to make errors such as failing to identify the relevant issues or asking the wrong question, those kinds of errors are likely to amount jurisdictional errors if made by a tribunal.
34 The Court of Appeal regarded the Equal Opportunity Tribunal (the predecessor to the Equal Opportunity Division of this Tribunal) as a court for the purposes of the distinction in Craig v South Australia: Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311 at [146]). The Court of Appeal said that:
The task of the Tribunal, acting within jurisdiction, was similar to the ordinary jurisdiction of a court of law as described in Craig 184 CLR, at p179-p180. There, the High Court said: 184 CLR, at p179-p180.
...the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
35 More recently, the Court of Appeal decided that the Tribunal has many characteristics of a court that answer statutory provisions relating to “courts”. However the Court held that the Tribunal is not a “court of a state” for constitutional purposes: Trust Company of Australia Limited (Trading As Stockland Property Management) v Skiwing Pty Ltd (Trading As Café Tiffany's) [2006] NSWCA 185 at [29].
36 In addition to the distinction between inferior courts and tribunals exercising governmental power there are other factors which are relevant when determining whether a jurisdictional or non-jurisdictional error has been made. Aronson et al list the following factors in Judicial Review of Administrative Action, 3rd ed Lawbook Co 2004 at p 216: “the gravity of the error, whether it related to a core or peripheral duty of the respondent, whether it related to a law applying specifically to the body or tribunal in question. . .”
37 As well as having authority to decide questions of law, the Appeal Panel has power to decide whether an error of law has been made: ADT Act, s 114. We accept that the Tribunal exercises what may be regarded as “governmental powers” from time to time, however in our view the Tribunal as a whole fits more comfortably within the category of an inferior court for the purposes of the distinction in Craig. Consequently, any error that it may have made is less likely to amount to a jurisdictional error.
Order
38 Even if the Appeal Panel does come within the category of a tribunal exercising governmental powers, the Appeal Panel did not make a jurisdictional error. The ‘error’, if any, was within jurisdiction. The highest it can be put is that the Appeal Panel made the mistake of assuming that it was not necessary to deal with Mr McGuirk’s ground of appeal relating to bias because it had found that the Tribunal had made a decisive error by purporting to review a decision it did not have jurisdiction to review. The effect of the mistake can easily be overcome if a differently constituted Tribunal hears the matter on remittal. At the beginning of the hearing we proposed that a practical way of remedying the situation was for us to recommend to the President of the Tribunal that he exercise his discretion under section 22(2) of the ADT Act to reconstitute the Tribunal so that Mr Montgomery is not the judicial member allocated to this matter on remittal. Mr McGuirk rejected that proposal. Despite that rejection, and in view of our findings, we will make that recommendation to the President.
- The application to re-open the Appeal Panel’s decision in McGuirk v University of New South Wales [2007] NSWADT 64 is refused.
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