Minister for Disability Services v People with Disabilities (NSW) Inc (CSD)

[2001] NSWADTAP 7

Appeal Panel

CITATION:	Minister for Disability Services -v- People with Disabilities (NSW) Inc (CSD) [2001] NSWADTAP 7
PARTIES:	APPLICANT Minister for Disability Services RESPONDENT People with Disabilities (NSW) Inc
FILE NUMBER:	009024
HEARING DATES:	6 December 2000
SUBMISSIONS CLOSED:	12/06/2000
DATE OF DECISION:	03/19/2001
DECISION UNDER APPEAL:	Preliminary determinations in relation to future conduct of matter.
BEFORE:	O'Connor K - DCJ (President); Rice S - Judicial Member; Houlahan L - Member
CATCHWORDS:	jurisdiction - no evidence - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	004001
DATE OF DECISION UNDER APPEAL:	05/02/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Appeals and Monitoring) Act 1993 Community Services (Complaints, Appeals and Monitoring) Regulation 1996 Disability Services Act 1993 Freedom of Information Act 1989
CASES CITED:	Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gaslight Co v Valuer General (1940) 40 SR 126 Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 Bowen-James v Delegate, Director General, Department of Health (1992) 27 NSWLR 457
REPRESENTATION:	APPELLANT G Williams, Solicitor RESPONDENT G Kirk, Solicitor
ORDERS:	1.Preliminary determination 2 is set aside ; 2.The application for review is dismissed.

1 This is an appeal by the Minister for Disability Services (the Minister) from preliminary decisions made by the Community Services Division of the Tribunal (the Tribunal) reported at People with Disabilities (NSW) Inc v Minister for Disability Services [2000] NSWADT 85. (There is a right to appeal to the Appeal Panel on interlocutory decisions (see Administrative Decisions Tribunal Act 1977, s 112(1) (the Tribunal Act) and further per Priestley JA in Lloyd v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68 at [23]).

2 People with Disabilities (NSW) Inc (PWD) has applied for review of decisions made, it claims, by the Minister in relation to the Peat Island Centre (Peat Island), an accommodation support service providing residential accommodation to more than 100 residents, all with intellectual disability. The preliminary decisions in issue relate to that application.

3 Whether a reviewable decision was made by the Minister, and what it was, is the issue that has brought the matter before the Appeal Panel.

4 Through the application for review, PWD seeks to raise the issue of whether the financial assistance being provided by the NSW Government for the conduct of Peat Island complies with the Disability Services Act 1993 (the DSA) and in particular with the requirements as to compliance with the human rights principles set out in Schedule 1 (the National Principles).

5 Under the Commonwealth/State Disability Agreement made 30 July 1991 the States became primarily responsible for the funding and oversight of all disability services including those previously administered by the Commonwealth. The DSA and related measures gave rise to ‘a greatly augmented role of the State in the administration and funding of disability services under the Commonwealth-State disability agreement’: Second Reading Speech, Disability Services Bill, 11 March 1993, LA (Mr Longley, Min for Community Services).

6 A major feature of the agreement was that the States agreed that in the provision of disability services and programs they would adhere to National Principles relating to the human rights of people with disabilities and principles as to their implementation: see DSA, Schedule 1, ‘Principles and Applications of Principles’.

7 The Financial Assistance Provisions of the DSA: Sections 10-19 of the DSA deal with ‘financial assistance’. Of relevance to this appeal are three provisions, ss 10, 11 and 12. These provisions follow.

‘ 10. Financial assistance
(1) The Minister may approve the provision of financial assistance:
(a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or
(b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services, or
(c) to a person or eligible organisation conducting, or proposing to conduct, an approved research or development activity for the purpose of enabling the person or organisation to conduct that activity.
(2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1.
11. Terms and conditions on which financial assistance to be approved generally
When approving the provision of financial assistance, the Minister must determine:
(a) the amount of the assistance or the manner in which the amount of the assistance is to be calculated, and
(b) the time or times at which, and the instalments (if any) in which, the assistance is to be paid, and
(c) the terms and conditions on which the assistance is to be provided.
12. Terms and conditions with respect to eligible organisations
(1) The terms and conditions on which financial assistance may be provided to an eligible organisation in relation to the provision of designated services must deal with each of the following matters:
(a) the extent to which the organisation must conform to the principles and applications of principles set out in Schedule 1 in connection with the provision of those services,
(b) the purposes for which the financial assistance may be applied,
(c) the amounts to be applied for those purposes,
(d) the outcomes to be achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services, and their rights in relation to the provision of designated services or otherwise,
(e) the performance indicators to be used in measuring the outcomes achieved for persons in the target group as a result of the provision to them by the eligible organisation of designated services.
(2) Without limiting section 11 (c) [a requirement that the Minister must determine the terms and conditions on which the assistance is to be provided], the terms and conditions on which financial assistance may be provided to an eligible organisation in relation to the provision of designated services may also deal with any one or more of the following matters:
(a) the agreements to be entered into, between:
(i) the eligible organisation, and
(ii) persons in the target group to whom it provides designated services, or persons acting on their behalf,
in relation to the provision of those services,
(b) the furnishing of information,
(c) the provision of certificates with respect to the fulfilment of terms and conditions,
(d) the repayment of financial assistance,
(e) the giving of security for the fulfilment of terms and conditions,
(f) the use and disposal of, and the recovery of amounts that under the terms and conditions are to be taken as representing the State's interest in:
(i) land acquired (with or without buildings), and
(ii) buildings acquired, erected, altered or extended, and
(iii) equipment acquired, altered or installed,
as a result of the application of the financial assistance or of the financial assistance and other money.’

8 Ensuring Compliance with the National Principles: As enacted, the DSA provided that it is the duty of the responsible Minister ‘in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1’: s 6(1).

9 The Transition Plan Provisions: One of the challenges posed by the new arrangements was the difficulty that many existing programs and services faced in not being able to show that they were fully in compliance with the National Principles upon commencement of the DSA, 8 April 1993. Consequently the DSA in s 6(2) and s 6(3) allowed for the Minister to determine that a designated service or a service transferred to the State prepare a transition plan. The effect of such a determination was that the services were not bound by the DSA for a further 3 years, during which time they were to prepare a plan for adoption by the Minister.

10 The transition plans were prepared pursuant to s 7 of the DSA. Section 7(4) provided that a transition plan ‘must provide for the service concerned to be provided or funded as closely as possible in conformity with the objects of the Act and [the National Principles]’ (para (a)), and ‘must indicate the date (being the earliest date practicable) by which the service concerned will be provided or funded in full conformity with the objects of the Act and [the National Principles]’ (para (b)).

11 Peat Island was a designated service, its residents a ‘target group’. On or about 25 March 1996 the Minister determined to adopt a transition plan in respect of Peat Island. The order adopting that transition plan was gazetted on 8 April 1996. The date at which Peat Island is required to reach full compliance is December 2002.

12 Most of the 800 existing services and programs in New South Wales prepared transition plans which were adopted with various dates specified as to when full compliance with the National Principles would be achieved.

13 Under a regulation made in April 1996 (the Community Services (Complaints, Appeals and Monitoring) Regulation 1996), a right of appeal to the Community Services Appeals Tribunal (CSAT) was conferred in relation to the Minister’s decision to adopt or amend, or to refuse to adopt or amend, a transition plan.

14 CSAT (the predecessor to the Community Services Division of this Tribunal) was created as part of the 1993 reform package, by the Act now entitled Community Services (Complaints, Review and Monitoring) Act 1993 (the CRM Act). In the second reading speech in 1993, the Minister said that this facility was one of various mechanisms that were being introduced because ‘consumers regard the introduction of effective and accessible complaints and appeals mechanisms as an essential safeguard to the obligations and rights in this bill’ (LA, 11 March 1993).

15 He said that one of the ways in which the rights of people with disabilities would be protected would be through conferring on CSAT ‘jurisdiction to review disputed funding decisions to ensure that they have been made in accordance with procedural requirements and the provisions of the bill’ (ibid).

16 Tribunal’s Review Jurisdiction: This jurisdiction is conferred on the Tribunal by s 40 of the CRM Act read in conjunction with s 20 of the DSA. Section 40(1)(a) of the CRM Act permits a person to apply to the Tribunal for review of ‘a decision made by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this paragraph.’ ‘Community welfare legislation’ is defined by s 4 as including Acts administered by any of the Ministers in the Community Services, Aged Services and Disability Services portfolios of government. As foreshadowed in the Second Reading Speech, the DSA gives persons a right to apply for review of decisions in relation to financial assistance, including in relation to the question of whether the decisions satisfy the requirements as to adherence by services to the National Principles: see s 20.

17 After the gazettal of the Peat Island transition plan PWD lodged an application for review of the Minister’s decision to adopt the Peat Island transition plan. This was one of almost 200 similar applications relating to the plans for different services. Many of those applications have been resolved. The application relevant to Peat Island remains pending in the Tribunal.

18 The application in this case refers to the jurisdiction conferred by paras (a) and (b) of s 20 of the DSA:

‘ 20. Decisions that are reviewable by Administrative Decisions Tribunal
For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 , any of the following decisions is reviewable by the Administrative Decisions Tribunal:
(a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10 (2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1,
(b) a decision to provide financial assistance to an eligible organisation in relation to the provision of designated services if the terms and conditions on which the assistance is provided to the organisation do not comply with section 12,
(c) …,
(d) …,
(e) …,
(f) … .’

Application for Review

19 The application founding the present proceedings is dated 2 February 2000 and replaced an application dated 26 July 1999. Both are in similar terms.

20 The notable feature of the application for review is that it does not identify with any precision the decision or decisions that it wishes to have reviewed. The application for review is proceeding on various premises including these: because Peat Island is in continuing operation it must be in receipt of financial assistance; that financial assistance must be of the kind referred to by the DSA in s 10; therefore there must have been a Minister’s decision to provide financial assistance made pursuant to s 10; and that decision must be a reviewable decision.

21 But no text of any decision is furnished. Nor does the Minister admit to making any such decision.

22 In the usual case coming before the Tribunal the applicant for review is also the subject of the administrative decision in issue. Consequently there should be no difficulty in identifying the decision in issue. The applicant should have formal notice of the decision, possibly accompanied by a statement of reasons.

23 But in this instance PWD is a third party to the relationship between the Minister and the Department of Community Services which in turn operates Peat Island.

24 The question of whether third parties can bring applications for review under the community welfare legislation is affected by s 41(1) of the CRM Act which confers standing on any ‘person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.’ The scope of this provision was addressed in a case conducted as a test case involving one of the transition plan appeals: People with Disabilities (NSW) Inc. and the NSW Council on Intellectual Disability v Minister for Disability Services Matter Nos 061 & 195 of 1998 (CSAT,12 February 1998). PWD was held to have standing to appeal against the transition plan adopted by the Minister for the services provided by the Dunrossil Challenge Foundation.

25 Clearly third party organisations such as PWD have an important role to play in ensuring compliance by the government with the DSA in particular the requirements in relation to adherence to the National Principles. There is no issue as to PWD’s standing in this case.

26 In its application dated 2 February 2000, PWD described the decisions of which it sought review as being:

‘(a) a decision to approve financial assistance to the Department of Community Services under s 10 of the DSA to operate the Peat Island Centre;

(b) a decision to provide financial assistance to the Department of Community Services under the DSA to operate the Peat Island Centre in circumstances where the terms and conditions on which this financial assistance is provided do not conform with s 12 of the DSA.’

27 The reasons given for seeking review were expressed as follows:

‘(a) The Peat Island Centre does not conform to the objects, principles and applications of principles of the DSA

(b) The terms and conditions on which financial assistance is provided to the Department of Community Services to operate the Peat Island Centre do not conform to the requirements of s 12 of the DSA.’

Preliminary Decisions of Tribunal

28 The application for review was marked by a lack of clarity as to when the decision in issue was made, what its terms were, giving rise in turn to no clear basis upon which time commenced to run for the purpose of determining an application for leave to apply for review out of time.

29 The Tribunal therefore addressed the following questions: what, if any, was the first reviewable decision made under s 10 of the DSA; in light of that decision, was the application in or out of time, and if out of time should leave be granted to proceed; were there any later reviewable decisions made under s 10 of the DSA. The preliminary decisions were delivered ex tempore on 2 May 2000 with written reasons being issued on 30 June 2000.

30 The Tribunal decided:

‘1.The decision of the Minister for Disability Services made on 8 April 1996 to approve the transition plan for Peat Island was not a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the DSA (the first determination)

2. On or soon after 8 April 1996 the Minister made a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island pursuant to s 10 of the DSA (the second determination)

3. The Tribunal extends the time for the making of an application for a review of that decision to 2 February 2000 to PWD pursuant to s 57 of the Administrative Decisions Tribunal Act 1997 (the third determination)

4. The Tribunal leaves open the question of whether the Minister for Disability Services has made any further decisions under s 10 of the DSA to approve financial assistance to the Department of Community Services to provide services at Peat Island (the final observation).’

31 After the decisions of 2 May 2000, the Tribunal gave the following directions to the parties:

‘1. By 30 June 2000 the Minister and the Director General of the Department of Community Services to file and serve every document in its possession or control relating to funding decisions concerning Peat Island made on around (sic) April 1996 for the 1996/97 financial years and any document in its possession or control relating to funding decision (sic) concerning Peat Island made in relation to funding for the 1999/2000 financial year including any document evidencing the terms and conditions on which financial assistance has been provided to the Department of Community Services to provide services at Peat Island including:

• self assessment documentation for the 1998/99 financial year;
• any other matters specified in s 11 or s 12 of the DSA;
• documents going to show the approval given by the Minister in relation to the 1999/00 financial year in respect of block funding in accordance with s 12 of the Public Finance and Audit Act 1983;
• documents evidencing acquittal by Department of Community Services with the requirements of the Relationship Agreement for the 1999/2000 financial year;
• the performance schedule for Peat Island for the 1999/2000 financial year
• documents providing evidence the amounts allocated (sic) from Treasury and ADD for services to Peat Island
2. PWD to file and serve any statements on which it intends to rely in all proceedings concerning Peat Island by 14 July 2000.

3. Minister to file and serve any statements on which it intends to rely in all proceedings concerning Peat Island by 28 July 2000.

4. This matter is set down for hearing on 7, 8 and 9 August 2000.’

32 The Minister and the Department filed a folder of material in response to Direction 1 on 11 July 2000. On 28 July the Minister filed the notice of appeal in relation to the Tribunal’s preliminary decisions.

Appeal
33 PWD submitted that the appeal was an arid one. PWD noted that the Tribunal had considered the application for leave to lodge the review application out of time. The application was opposed. The Tribunal decided to grant leave.

34 PWD submitted that as the main task of the Tribunal at the preliminary hearing was to decide whether to grant leave to proceed out of time, and that question had been resolved, there was no justification for looking at the other issues on which the Tribunal made a ruling.

35 We do not regard the issues raised by the Tribunal as somehow being rendered insignificant or inconsequential by reason of the decision on the leave question. The issues raised on appeal relate to decisions made by the Tribunal as a necessary basis on which to extend time. The appeal is not, in our view, an arid one.

Main Appeal Grounds

(1) That the Tribunal erred in law in its first determination that the decision to adopt a transition plan made under s 7 of the DSA made on 8 April 1996 was not a decision to approve financial assistance to the Department of Community Services to provide services at Peat Island, pursuant to s 10 of the DSA.

36 At para 14 of the written submissions for the appeal, the solicitor for the Minister states that ‘[i]n its submission below the appellant submitted that the decision of the Minister on 8 April 1996 to adopt the transition plan in respect of the Peat Island Centre was the only decision that could be identified as a decision under s 10(1) of the DSA approving the provision of financial assistance under s 10(1) of that statute.’ The solicitor for the Minister agreed at the Appeal Panel hearing, however, that no decision taken in the process of adopting the transition plan made express reference to or expressly relied upon s 10.

37 Evidence was given before the Tribunal by senior officers of the relevant agency, the Ageing and Disability Department, as to the processes followed in allocating financial resources to disability services such as Peat Island. This evidence was accepted by the Tribunal. It was to the following effect.

38 Basically a general budget appropriation is made by the Treasurer for disability services as part of the State Budget. That appropriation is administered by the Minister for Disability Services whose Department, the Ageing and Disability Department then allocates those funds as between the different government agencies and non-government bodies responsible for the provision of services. In the present instance an allocation was made to the Department of Community Services for the services it operates. In turn that Department allocates funds as between its services including Peat Island. The Peat Island budget for 1999-2000 was (rounded) $8.7m. It provided services to 156 residents. The budget is reviewed annually in the context of this process.

39 It was agreed before the Tribunal that the Peat Island transition plan was adopted by the Minister on 8 April 1996 pursuant to s 7 of the DSA. The Minister submitted that the only specific decision under s 10 that could be said to have been made as to funding of Peat Island was made as part of that adoption of the transition plan on that date. The Tribunal decided (determinations 1 and 2 and direction 1, which ensued) that that was not the case.

40 The first determination is formulated in a way that might suggest that it amounted only to a finding of fact in the circumstances of the case. This interpretation of the findings of the Tribunal below was pressed at the appeal by PWD. But it is clear from the reasons of the Tribunal at paras [36] and [37] that it saw it as not possible as a matter of law for a s 7 decision to be the s 10 decision. The Minister submits in this appeal that this is an error of law.

41 The Tribunal’s reasoning was as follows:
‘36 Section 7 of the DSA relates to the preparation of transition plans for non-conforming services. The approval of the transition plan is a pre-requisite to non-conforming services receiving funding, but a separate decision is required under s 10 for the approval of the provision of financial assistance. Adoption of the transition plan cannot be the approval of the provision of financial assistance because under sections 11 and 12, certain specific details such as the amount of the assistance and the terms and conditions on which the assistance is provided must be stipulated. Section 11 requires that when approving the provision of financial assistance, the Minister must determine certain matters such as the amount of assistance and the terms and conditions on which the assistance is to be provided. Section 12 sets out the subject matter that the terms and conditions must deal with. Neither the transition plan itself, nor the Minister's decision to adopt it, contain any of the information required by s 11 or s 12.
37 The conclusion that the adoption of the transition plan does not constitute approval of the provision of financial assistance is further supported by the fact that there is no provision in the DSA which states that the adoption of a transition plan by the Minister constitutes the provision of financial assistance under s 10(2). If that was parliament's intention, it would have been expressed.’

42 It is clear that the Minister made a s 7 decision i.e. to adopt a transition plan for an existing designated service currently in receipt of funding, Peat Island. There is no evidence from the senior officers of the agency to the effect that this was intended also at the time to be a s 10 decision. Usual indicia that one might expect to find are not present in the documentation referred to at the preliminary hearing. We refer, for example, to the absence of any recital or declaration to the effect that the adoption of the transition plan was also intended to constitute a decision pursuant to s 10. Only in the context of the application for review has it been suggested that this was also a s 10 decision.

43 We agree with the Tribunal below that the DSA read as a whole depicts a legislative scheme in which formal decisions as to the adoption of transition plan are differentiated from formal decisions as to financial assistance. We agree with the Tribunal that one would expect to find an express statement in the DSA if Parliament had intended that a s 7 and s 10 decision could be ‘rolled up’ in the way suggested on behalf of the Minister.

44 Were it the case that the s 7 decision without more could also be the s 10 decision, a situation would result which would be inimical to good decision-making practice. It would make extremely difficult the effective exercise of review rights, especially where they are conferred, as here, on third parties (with the requisite interest).

45 Ministers and agencies should not be permitted readily to say after attention has been drawn to a possible failure to exercise a statutory responsibility that the performance of some other statutory responsibility also involved the performance of the statutory responsibility now in issue. Citizens should be able clearly to identify the basis upon which a power is exercised.

46 However, we acknowledge that the one administrative process could give rise to two statutory decisions. While there are different heads of power under scrutiny in this case, there is nothing in the Act, as we construe it, that precludes the possibility that a decision to issue a transition plan and a decision to approve the provision of financial assistance could be made as part of the same administrative process. So it could be the case that two decisions, to issue a transition plan and to provide financial assistance, could be made at the one time and by means of connected documents.

47 But we have the same difficulty as the Tribunal below did in accepting that the decision which was expressly one under s 7 was at the same time and in the same terms a decision under s 10 in the circumstances of this case, or that that such an outcome is possible as a matter of law.

48 So in relation to this question we agree with the Tribunal.

(2) As to the Second Determination, there was no evidence upon which the Tribunal could base its second determination that soon after 8 April 1996 a decision to approve financial assistance pursuant to s 10 of the DSA was made.

49 The Tribunal’s reasoning in relation to the Second Determination was as follows:
‘39 Since there does not appear to have been any explicit decision by the Minister pursuant to s 10 in relation to funding for DOCS to run the Peat Island Centre, following the adoption of the transition plan, the Tribunal should adopt a construction of events which is consistent with the law being complied with. It should also be noted that decisions under s 10 cannot be delegated.
40 The Interim Funding Agreement which sets out many of the terms and conditions required by sections 11 and 12 of the DSA was not signed until sometime prior to February 1999. In these circumstances, since the Peat Island Centre continued to receive funding, the most likely conclusion is that the Minister impliedly gave approval for the provision of financial assistance, at or around the time when the transition plan was approved, that is on or around 8 April 1993. While the terms and conditions of the approval, as required by s 11 and s 12, may not have been articulated at that time, they may be implied from other documentation not currently before the Tribunal.’

50 The Tribunal’s reasons raise two issues: (i) must there always be a s 10 decision in relation to the funding of a service; (ii) was it open to the Tribunal to find that such a decision was made ‘at or around 8 April 1993’ and to infer its existence from ‘documentation not currently before the Tribunal’?

(i) Must there always be a s 10 decision?

51 The premise underlying the application for review would appear to be that there must in the case of all services be a separate decision to provide financial assistance under s 10 including all services subject to transition plans; and that further there should be a set of terms and conditions that deal with the considerations listed in s 12.

52 We note that s 7 provided a mechanism through which existing services could bring themselves progressively into compliance with the National Principles. It would seem to follow logically that while a service is governed by a transition plan it would expect to be and should continue to be funded. We are not convinced that the financial assistance provisions (ss 10-19) are meant to be all-encompassing. An alternative interpretation is that the financial assistance provisions are addressed to services not governed by transition plans. We note that nowhere in ss 10 to 19 is there any reference to transition plans or services that are operating under transition plans. This tends to suggest in our view that during the transition plan period relevant standards and targets are to be those set by the plan. It may be that there need not be any separate s 10 or s 12 agreement. The issues that a transition plan would be expected to deal with are similar to those enumerated in s 12. In our view it may be that the provisions in ss 10-19 were addressed to circumstances that were not governed by transition plans, for example, new services, services no longer subject to transition plans, other activities such as research.

53 We do not regard the legislation as clear on this point. But we do not consider it necessary in this case to express any concluded view on this question.

(ii) Does the evidence support an implied s 10 decision?

54 The material before the Tribunal could, we consider, only have supported one of two conclusions as to what was the reviewable decision. Either the Minister’s understanding that the s 7 decision also involved a s 10 decision was correct; or there was no evidence before the Tribunal of any reviewable decision.

55 ‘The question of whether there is any evidence of a particular fact is a question of law’: per Mason CJ (with whom Brennan J agreed) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355, citing McPhee v S Bennett Ltd; Australian Gaslight Co v Valuer General (1940) 40 SR 126 at 137-138. That situation is to be distinguished from one where there is some evidence that could support the finding placed in issue at appeal but that finding is perverse viewing the evidence overall. In New South Wales at least, no error of law arises in those circumstances: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139; see further Bowen-James v Delegate, Director General, Department of Health (1992) 27 NSWLR 457 at 475. In the Australian Broadcasting Tribunal v Bond Mason CJ observed at 356 that: ‘[A]t common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that result is drawn as a result of illogical reasoning, there is no place for judicial review because of error of law.’

56 In Bowen-James v Delegate, Dept of Health the NSW Court of Appeal considered the dicta referred to in ABT v Bond to be ‘entirely consistent’ with Azzopardi (per Sheller JA (with whom Clarke and Handley JJA agreed) at 475). But whether the High Court went so far as to embrace the principle that perverse findings of fact did not constitute an error of law, or whether the High Court was confining itself simply to the proposition that perverse findings are not challengeable on the ‘no evidence’ ground but may be open to attack on other bases (e.g. irrelevant considerations) has been debated: see generally Aronson & Dyer, Judicial Review of Administrative Action (2nd ed 2000) 211-219. It is not necessary to form a concluded view on this issue in this case.

57 We are satisfied that there was no evidence before the Tribunal of any s 10 decision having been made by the Minister, in any terms, at any time. That situation was, we consider, tacitly acknowledged by the Tribunal in its observations at para [39] of its reasons, and by its directions. It was not open to the Tribunal on the basis of the evidence before it to make its finding in determination 2, that there was a s 10 decision at some unspecified date, and then give direction 1 seeking, in effect, to obtain the evidence that might reveal when and in what terms it was made.

58 We agree with the submission for the Minister that the Tribunal has erred in law in that there was no evidence upon which it could base such a conclusion.

59 The primary responsibility for identifying a reviewable decision founding the jurisdiction of the Tribunal lies with the applicant for review. The task of the Tribunal, as we perceive it, on receipt of an application for review, is simply to satisfy itself that that has occurred. As we read the scheme establishing the Tribunal’s jurisdiction to review reviewable decisions, the administrative decision placed in issue by an application should be capable of clear identification in the application for review at the time that it is filed. The Tribunal should not lend its authority to an application which is speculative as to the existence and content of the reviewable decision sought to be placed in issue.

60 A third party public interest applicant will, we recognise, sometimes have difficulty in ascertaining whether a reviewable decision has been made. If the administrator can not identify the decision, and the applicant considers that the administrator is being unco-operative in that regard, courses such as Freedom of Information Act applications may have to be pursued. It is not satisfactory that an application fail to specify with reasonable precision the decision in issue, then engage the Tribunal’s processes with a view to those processes curing the omission. This is different from a situation where the applicant has misidentified the decision of which review is sought but, on the error being realised, the relevant reviewable decision can be identified. In those circumstances it is appropriate for the Tribunal to proceed without regard to technicalities and to act in a way that ensures that a party has the fullest opportunity to be heard (Tribunal Act, s 73(3) and (4)(c)).

Status of Application for Review

61 For the reasons given, we consider that the only finding that was open to be made was that there was no relevant decision. An application for review in relation to a non-existent decision is not a proper one. The jurisdiction of the Tribunal has not been engaged. Consequently there was no basis on which the Tribunal could order an extension of time for such an application. We agree with the Minister’s submission in that regard.

62 The result of our decision is that there is no valid application before the Tribunal. In these circumstances there is nothing to remit to the Tribunal for further consideration.

63 Accordingly the Appeal Panel is disposed to exercising the powers conferred by s 114 of the Tribunal Act. Section 114 provides:
‘ 114 Appeals on questions of law
(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 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.’

64 An order should be made in substitution for that of the Tribunal dismissing the application as misconceived (see Tribunal Act, s 73(5)(h)).

Order

1.Preliminary determination 2 is set aside.

2.The application for review is dismissed.