Morgan v Director General, Department of Education and Training & anor (GD)

[2000] NSWADTAP 3

Appeal Panel

CITATION:

Morgan -v- Director General, Department of Education and Training & anor (GD) [2000] NSWADTAP 3

PARTIES:

APPELLANT
Ms Morgan

1st RESPONDENT
Director General, Department of Education and Training

2nd RESPONDENT
Minister for Education and Training

FILE NUMBER:

999026

HEARING DATES:

21/12/99

SUBMISSIONS CLOSED:

02/03/2000

DATE OF DECISION:

03/17/2000

DECISION UNDER APPEAL:

05/05/99, 11/05/99, 28/09/99

BEFORE:

Hennessy N (Deputy President); Wilson K - Judicial Member; Bolt M - Member

CATCHWORDS:

leave to appeal out of time - statutory interpretation - summons - apparent relevance test

MATTER FOR DECISION:

Principal matter

FILE NUMBER UNDER APPEAL:

983034, 993018

DATE OF DECISION UNDER APPEAL:

09/28/1999

LEGISLATION CITED:

Freedom of Information Act 1989

CASES CITED:

Lloyd -v- TCN Channel Nine Pty Ltd [1999] NSWADTAP 3
R -v- A and B [1999] NSWADTAP 2
Grassby -v- R (1989) 168 CLR 1
Botany Bay Instrumentation & Control Pty Ltd -v- Stewart [1984] 3 NSWLR 98
National Employers' Mutual General Assoc Ltd -v- Waind and Hill [1978] 1 NSWLR 377
Arhill Pty Ltd -v- General Terminal Co Pty Ltd [1990] 23 NSWLR 545
Wednesbury Corp -v- Ministry of Housing & Local Government [No 2] [1966] 2 QB 275
Botany Council -v- The Ombudsman [1995 37 NSWLR 357
Sime -v- The Minister for Immigration 21 AAR 369

REPRESENTATION:

In person
A Anastasi, solicitor

ORDERS:

1. The Tribunal’s determination of 5 May 1999 including the Statement of Agreed Outcomes, is set aside; 2. The Tribunal’s determination of 11 May 1999 setting aside a number of summonses is set aside; 3. The Tribunal’s determination of 28 September 1999 is set aside; 4. The applicant’s entire application is remitted to the Tribunal to be heard and decided again.

Introduction

1 This is an appeal by Ms Morgan under s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Ms Morgan is appealing against certain decisions of the Tribunal relating to applications she made under the Freedom of Information Act 1989 (FOI Act).

2 Ms Morgan’s son attended Bourke Street Public School in Surry Hills at the beginning of 1996 when he was 5 years old. Several incidents occurred which led Ms Morgan to make applications to the Minister of Education and Training and the Department for Education and Training for access to certain documents which concerned her personal affairs. The Department and the Minister granted access to many documents.

3 Ms Morgan then requested amendments to some of the records concerning her personal affairs under s 39(c) of the FOI Act because the information is, in her opinion, incomplete, incorrect, out of date or misleading. It was the refusal to amend these records pursuant to s 43 of the FOI Act that gave rise to the original proceedings in the Tribunal.

4 The Tribunal decided to deal with these applications by way of a preliminary conference under s 74 of the ADT Act. The conference was held on two separate days in an attempt to resolve the matters. On 5 May 1999 the Tribunal made a determination pursuant to s 74 which attached a “Statement of agreed Outcomes.” The Tribunal said in that determination at [3-5] that:

1. The parties agreed following a preliminary conference held pursuant to s 74 of the Administrative Decisions Tribunal Act 1997 on 8 and 11 March 1999 to numerous amendments and other actions in relation to a series of documents provided by the respondents to the applicant in response to requests made under the Freedom of Information Act 1989.

2. The agreement was made orally, subject to the Tribunal being satisfied that the Statement of Agreed Outcomes to be prepared by the respondents accurately reflected the agreement.

3. The Tribunal is satisfied that the Statement of Agreed Outcomes, now filed, accurately reflects the agreement.

4. The Tribunal notes further that the applicant indicated at the directions hearing on 4 May 1999 that she did not then or now agree to any part of the Statement of Agreed Outcomes being the subject of a determination. In my opinion she did give her agreement on 11 March 1999 to each of the items recorded.

5. However in light of submissions by the applicant made at the directions hearing on 4 May 1999, the Tribunal does not propose to give effect for the time being to para 5 of the Statement and has referred further consideration of that matter to a directions hearing to be held on 11 May 1999.

5 It should be noted that a few days later, on 11 May 1999 (at the hearing involving an application to set aside certain summonses issued by Ms Morgan) the Tribunal said that:

Having regard to what’s been said, it seems to me that paragraph 5 of the agreed outcomes is not a continuing issue so I’ll treat those as forming part of the previous order and set this matter down for hearing in respect of the balance . . .(11 May 1999 transcript at p 24)

6 Passages from four documents remained in dispute following the determination made on 5 May 1999. These passages were the subject of a hearing held on 31 May 1999. A decision was handed down on 28 September 1999. Each of the respondents’ decisions not to amend the documents was affirmed subject to a notation being placed on two of those documents. The orders were made in the following terms:

Application NO 983034 - relating to the Department

As to the parts of the two documents in dispute that were referred to hearing, the decisions under review are affirmed subject to the following direction:
That in the case of the attachment to the incident report (referred to as document 4 in the Reasons for Decision) the following notation be attached to the two statements in issue:

“These comments represent merely the perceptions held by the author as to the conduct of the applicant in the particular circumstances at that time and have no greater significance. This notation has been added at the direction of the Administrative Decisions Tribunal.”

Application No 993018 - relating to the Minister
As to the parts of the two documents in dispute that were referred to hearing, the decision under review are affirmed.

Appeal to the Appeal Panel

7 On 14 October 1999, Ms Morgan appealed to the Appeal Panel. The Notice referred to grounds of appeal which relate to the decision made on 28 September 1999 as well as to grounds which related to the conduct of the preliminary conference, the determination made on 5 May 1999 as a result of that conference, and the decision to set aside various summonses.

8 A number of preliminary issues arose in these proceedings. These are:

· whether the Tribunal’s decision of 5 May 1999 (set out in paragraph 4 above) is an appealable under s 112 of the ADT Act ;
· if so, whether Ms Morgan has appealed against that decision;
· if so, whether that appeal should be accepted out of time.

9 Section 112 of the ADT Act states that

(1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:

(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or

(b) a review of a reviewable decision.

(2) Without limiting subsection (1), the following decisions are also appealable decisions:


(a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or

(b) an order of the Tribunal under section 71(2) that the parties to proceedings before it may not be represented by an agent of a particular class, or

(c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal.

(3) A decision of an Appeal Panel is not an appealable decision for the purposes of this Part.

10 Ms Morgan was not legally represented in any proceedings before the Tribunal and made no submissions on this question.

11 In the Crown’s written submissions dated 16 November 1999 at paragraphs 20 and 28, they conceded that a determination made pursuant to s 74 of the ADT Act is an appealable decision.

20 Such a determination is a decision of the Tribunal from which an appeal must be made within 28 days from 5 May 1999 (see s 114(3) of the ADT Act and discussions of meaning of “decision at pages 20 and 21 in Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP 3, unreported, 27 July 1999) Accordingly the Tribunal must now grant leave for the appellant to appeal the determination.

28 . . . the ADT Act provides a mechanism for the appeal of a determination made at an informal conference. . .

12 However, the respondent was not so ready to concede this point at the hearing. In relation to the determination made on 5 May 1999, the Crown submitted that it was not made “in proceedings” for a review of a reviewable decision as required by s 112.

13 Pursuant to s 74(2) of the ADT Act, a determination agreed to by the parties following a preliminary conference, “has effect as a decision of the Tribunal.” The decision was not made in the preliminary conference itself but was made on a separate occasion. It was a final determination in relation to the issues dealt with and was made “in proceedings for a review of a reviewable decision”.

14 We are satisfied that it is a decision of the Tribunal that is reviewable even if it was made beyond power. Support for this proposition can be found in s 6(3) which states that:

For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it

15 We agree with our colleague Mr Smith’s view of this section which he made in Lloyd v TCN Channel Nine Pty Ltd [1999] NSWADTAP3 where he said that:

I see no reason not to read the reference in this provision to “a decision that purports to be made under an enactment” as including a decision purporting to be made by the Tribunal under a provision of the ADT Act itself.

16 Consequently the decision made on 5 May 1999 is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) which was made in proceedings for a review of a reviewable decision.

Did Ms Morgan appeal against the 5 May decision?

17 In her Notice of Appeal Ms Morgan identified the decision as the decision she received on 13 October 1999, that is the 28 September 1999 decision. However in the Reasons for Appeal dated 19 October 1999 at paragraphs 6, 7, 8 and 10 Ms Morgan refers to the circumstances surrounding the 5 May 1999 decision. When asked by the Appeal Panel, she said, “I was appealing about the lot.”.

18 The Crown stated in their written submissions at para 18 that, “Paragraphs 6, 7, 8 and 10 of the Reasons dated 19 October 1999 relate to a determination made by President O’Connor pursuant to s 74 of the ADT Act on 5 May 1999. . . .” However, later in their submission, at paragraph 28, the Crown submits that Ms Morgan “failed to utilise” her right to appeal against the 5 May 1999 determination.

19 Section 73(3) of the ADT Act states that:

The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

20 In view of this requirement, the Tribunal is satisfied that Ms Morgan has appealed against the determination made on 5 May 1999 in her Notice of Appeal. She made it clear in her Reasons for Appeal document that she did not agree with the decision to make consent orders in relation to the outcomes of the preliminary conference.

21 Under s 113(3) of the ADT Act:

(3) An appeal must be made:

(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or
(b) within such further time as the Appeal Panel may allow.

22 When questioned by the Appeal Panel, Ms Morgan said that she was not advised by the Tribunal that she could appeal against the 5 May 1999 decision. Ms Morgan told the Appeal Panel that she was waiting for the outcome of the hearing and if it was in her favour she may have decided not to pursue the issues surrounding the preliminary conference. However, since it was not in her favour, she had decided to appeal “the lot.”

23 The Crown’s submissions did not incorporate argument about whether the matter should be accepted out of time, apart from saying, at paragraph 26, that failure to advise the applicant of her appeal rights does not amount to an error of law.

24 We have decided to accept Ms Morgan’s appeal (in relation to the s 74 determination) out of time for several reasons. Firstly she did appeal against that determination within a reasonable time (approximately 5 months) and soon after the final determination was made in respect of the outstanding matters. Secondly, Ms Morgan was not legally represented and was not advised by the Tribunal of her right to appeal. Thirdly, Ms Morgan explained that she may have decided not to appeal if the outcome at the hearing was in her favour. Finally, there is no prejudice to the respondent in accepting the appeal out of time as they have been on notice of the grounds of that appeal since it was lodged and have made submissions on the substance of that appeal.

25 In points 6, 7, 8 and 10 of the applicant’s reasons for appeal several references are made to the preliminary conference and to the determination made under s 74 of the ADT Act. The respondents contend that they do not raise a question of law. We cannot agree. Although not expressed in legal language, the applicant’s reasons in points 6, 7, 8 and 10 and her oral statements to the Appeal Panel, make it clear that in her view the following errors of law were made:

The Tribunal erred in law by making a determination under s 74(2) when it was on notice that one of the parties did not agree to the determination being made. (See paras 7 and 8 of Reasons for Appeal)

The Tribunal erred in law by deciding that it could make such a determination despite the applicant’s disagreement if it considered it to be in the best interests of the person whose interests are considered by the Tribunal to be paramount.

26 The submission made by Ms Morgan in paragraphs 6 does not raise questions of law. In summary this submission was that Mr Peter Singleton, representing the Crown Solicitor’s Office, lied to the applicant in the course of the preliminary conference and that the Tribunal allowed the applicant to be deceived. The respondent denies this allegation.

27 Section 74(4(a) states that:

(a) evidence is not to be given, and statements are not to be made, concerning any words spoken or acts done at a conference held in accordance with this section unless the parties otherwise agree

28 Consequently any allegation concerning words spoken by Mr Singleton or Judge O’Connor in the course of the conference cannot be used as evidence before the Appeal Panel without the express agreement of the parties. The Panel has no evidence that there is such an agreement.

29 In relation to the question of whether a determination under s 74 can be made in the absence of agreement of a party, the relevant passages from the Tribunal’s decision are set out in paragraph 4 above. Significantly the Tribunal found that Ms Morgan had agreed on 11 March 1999 to each of the items recorded in the Statement of Agreed Outcomes, but acknowledged that she did not agree on 4 May 1999, the day before the determination was made. Regardless of the position on 11 March 1999, it is common ground that Ms Morgan advised the Tribunal on 4 May 1999 that she did not agree to the Tribunal making the determination it made on 5 May 1999.

30 The transcript of 4 May 1999 provides the context for the order that the Tribunal made the following day. Despite two days spent in a preliminary conference during which the applicant appeared to agree to numerous amendments, she did not agree to the amendments when shown the “Statement of Agreed Outcomes” despite the fact that the Statement was an accurate reflection of the discussion. It is also obvious from this transcript and other documents that the outcomes the applicant was attempting to achieve through the Tribunal were largely not available to her. For example, at p 33 of the 5 May 1999 transcript, Ms Morgan said: “I think I should be entitled to have this document amended stating that Robert Smith knew I was not a satanist and he wrote it anyway. I cannot see any logical reason why the amendment cannot state that.” Statements such as these disclose that Ms Morgan has an agenda which is largely unachievable under the FOI Act, which is designed merely to correct errors or misleading statements not to lay blame.

31 Ms Morgan also stated on 4 May 1999 that she was in poor health. The proceedings in the Tribunal were clearly causing her a great deal of stress and anxiety (see p 32 of 4 May 1999 transcript). It was in this context that the Tribunal made the consent orders on 5 May 1999 despite Ms Morgan’s disagreement.

32 The Tribunal justifies making the determination despite this disagreement on two grounds. Firstly it said that she did agree on 11 March 1999. Secondly it said that despite her disagreement now, it was satisfied that it was in her best interests to make the determination.

33 Section 74(2) of the ADT makes it clear that regardless of the circumstances surrounding a particular case, the Tribunal cannot made a determination unless the parties agree. The transcript of 4 May 1999 reflects the fact that the applicant did not agree to the determination and advised the Tribunal of her disagreement prior to the determination being made. With the greatest of respect, we find that the Tribunal erred in law in making an order under s 74 when the applicant did not agree to that order being made.

34 The second basis for the Tribunal’s decision was that taking into account s 74(3) it was satisfied that it was in the applicant’s best interests that the determination be made (see para 7 of decision). Section 74(3) states that:

A determination is not to be made under this section unless the Tribunal, or the member or assessor making the determination, is satisfied that the determination is in the best interests of the person whose interests are considered by the Tribunal, member or assessor to be paramount.

35 The Tribunal stated in the determination of 5 May 1999 that:

. . . I have proceeded on the basis that in a Freedom of Information Act matter the person whose best interests should be regarded as paramount is the applicant. But weight must also be given, I consider, to the interests of the respondents, and their reasonable expectations that the agreement will be maintained.

36 The Tribunal considered the determination to be “reasonable in the circumstances” and “consistent with the best interests of the applicant viewed objectively” (para 10 of the decision). The respondents, in paragraph 22 of their written submission, state that:

Section 74(3) of the ADT Act provides that a determination is not to be made unless the tribunal is satisfied that the determination is in the best interests of the person whose interests are considered by the tribunal to be paramount. At paragraphs 7 to 10 of the determination President O’Connor identifies the appellant’s objection to the determination, but makes one having regard to her best interests.

37 In a letter to the Tribunal dated 11 May 1999, Ms Morgan wrote:

Whilst I respect your right to be the judge of determinations to be made in accordance with the law (Anglo-Christian Law), please respect my right to be the judge of whether your determinations are in my “best interest”.

38 Section 74(3) is based on a former provision in the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act) which set up and regulated the procedures of the Community Services Appeals Tribunal. That Tribunal was abolished on 1 January 1999 and its jurisdiction transferred to the Community Services Division of the Administrative Decisions Tribunal. Prior to that transfer the CAMA Act contained a provision (section 54) which was virtually identical to s 74(1), (2) and (3) of the ADT Act. The CAMA Act set up the Community Services Appeals Tribunal to review certain decisions concerning the provision of services to children and people with a disability. One of the principles to be observed in exercising functions under the CAMA Act, is that “the paramount consideration in providing a service for a person must be the best interests of the person” (s 3(2)(a)). Consequently any determination reflecting the agreement of a child or a person with a disability (or their advocate) could not be made under the CAMA Act unless it is consistent with their best interests.

39 Given the origin of s 74, we do not consider that a party’s interests should be considered by the Tribunal to be paramount unless the circumstances of the case make it clear that one party’s interests should be preferred over another’s. Normally this would be indicated by some legislative provision such as those in the CAMA Act. In the absence of such a provision, there would have to be a sound reason for considering that one party’s interests should be preferred. This may be where the decision affects a person who lacks capacity to give their consent to a determination.

40 Section 5 of the FOI Act sets out the objects of the Act in the following terms:

The objects of this Act are to extend, as far as possible, the rights of the public:
(a) to obtain access to information held by the Government; and
(b) to ensure that records held by the Government concerning the personal affairs of members of the public are not incomplete, incorrect, out of date or misleading.

41 The FOI Act give members of the public certain rights to apply for amendment of records. As long as these records concern their personal affairs, the Act does not provide for this right to be weighed against any rights or interests of the agency or a third party. In that sense, the rights of members of the public to have incomplete, incorrect, out of date or misleading records amended, is paramount.

42 However, s 74(3) can only applies when, despite the agreement of all parties, the Tribunal decides not to make the determination because it does not reflect the best interests of one of the parties whose interests are regarded as paramount. It does not, on our reading, allow the Tribunal to make a determination if one party disagrees with that determination. Consequently the Tribunal erred in law in applying s 74(3) in the absence of the agreement of one of the parties.

43 For these reasons, despite the unfortunate circumstances of this case where considerable time has been expended working towards an agreement, the determination of 5 May 1999 including the Statement of Agreed Outcomes is set aside.

44 Under section 113(2)(b) of the ADT Act an appeal on a question of law may, with the leave of the Appeal Panel, extend to a review of the merits. We have decided not to extend this aspect of the appeal to the merits because we have no transcript or other record on which a decision on the merits could be based. Consequently those aspects of Ms Morgan’s application dealt with in the Statement of Agreed Outcomes is remitted to be heard and decided again by a differently constituted Tribunal.

Setting aside summonses
45

The applicant submitted that the Tribunal erred in law by unlawfully setting aside several summonses which she says prevented witnesses from testifying. She submitted that she was denied the opportunity to present “essential evidence” to establish that certain material was incorrect and/or misleading.

46 The respondents agreed that the issue of whether a summons should be set aside raises a question of law.

47 Summonses to give oral evidence were issued to the following staff at Bourke Street Public School: Margaret Deasy, teacher; Peter Balding, teacher; Cathy Gill, teacher; Graham Harvey; Terry Sterling, Isobel Zardin, Claire Barta, Mary Thompson; Ayse Baysarri, Joan Whyte, clerical assistant; Margot Cooper, receptionist; Cathy Espinosa, teacher; Darren Herbert, teacher; Tralie McMain, assistant principal; and Peter Porteous, principal. Summonses were also issued to: Robert Smith, Bondi District Superintendent, Department of School Education; Alan Laughlin, Assistant Director General, Department of School Education; Ken Boston, Director General, Department of School Education; Stewart Crawford, Chief of Staff, Office of the Minister for Education and Training; John Acquilina, Minister for Education and Training; and Joel Webster, Legal Services, Department of Education and Training.

48 Peter Porteous, Principal of Bourke Street Public School, filed an affidavit on 4 March 1999 requesting that twelve summonses in relation to present and former members of staff of the school be set aside. These summons were to: Isobel Zardin, Terry Sterling, Tralie McMain, Darren Herbert, Cathy Gill, Cathy Espinosa, Margaret Deasy, Margot Cooper, Ayse Baysarri, Claire Barta, Peter Balding and Peter Porteous. The affidavit stated that these people had not been served with the summonses and, at para [7] said that:

I believe that if the other people named in the said summonses were even informed that they had been summonsed they would be distressed, and that they would be even more distressed if they had to have any further dealings with the applicant.

49 In summary, the grounds on which Mr Porteous submitted that the summonses should be set aside were that:

· there would be extreme disruption and expense caused to the school;

· he and the other teachers summonsed have found dealings with the applicant distressing;

· this distress would cause serious harm to the morale of the school and the effectiveness of its educational services; and

· he is not aware of any legitimate reason why the applicant should call evidence from any of the persons named in the said summonses.

50 On 11 May 1999 the Tribunal set aside all the summonses listed in paragraph 46 above, apart from the one addressed to Peter Porteous.

Several preliminary issues arise in relation to the appeal against this decision. They are:

· Does the Tribunal have jurisdiction to hear an appeal on this ground? If so, was the appeal made within time?
· Can a person to whom a summons is directed (in this case Mr Porteous) apply for summonses addressed to other people to be set aside?
· Did the Tribunal set aside summonses in relation to those not covered by Mr Porteous’ application? If so, on whose application were these summonses set aside?
· Was the Tribunal’s decision to set aside the summonses, a final decision?

Jurisdiction and out of time issue

52 The Appeal Panel has jurisdiction to hear appeals from interlocutory decisions (See R v A and B [1999] NSWADTAP2 at [5]). The provisions in relation to out of time appeals are set out above at para [21] of this decision. Ms Morgan was not advised by the Registry of her right to appeal against the decision to set aside the summonses. In any event, the respondent did not object to the decision setting aside the summonses forming part of this appeal. In these circumstances, the Tribunal allows the appeal against the decision to set aside the summonses to be brought out of time.

In her Reasons for Appeal document at para [11], Ms Morgan states that:

Applicant would question the legalities of Porteous (and counsel for the Respondent) presuming to speak on behalf of witnesses subpeonaed (sic) by the Applicant in the absence of any evidence that it is with the knowledge and/or consent of those subpeonaed.

54 Under s 84(1) of the ADT Act, a summons may be issued by the Registrar either on the application of a party or at the direction of the Tribunal. The ADT Act does not have a specific power to set aside a summons, nor does it have any inherent jurisdiction to do so. However the Tribunal may set aside a summons by implication on the principle that a grant of power carries with it everything necessary for its exercise (Grassby v R (1989) 168 CLR 1 at 16).

55 In the absence of any guidance in the ADT Act, we must look to common law principles to determine who can bring an application to set aside a summons. Powell J in Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 102 stated that

. . . an application to set aside a subpoena which is an abuse of process may be made not only by the person to whom the subpoena is directed but also by a party to the litigation and any other person who might be shown to have a legitimate interest in having the subpoena set aside. .

56 We are satisfied that Mr Porteous, as principal of the school, has a legitimate interest in having the summonses directed to current and former members of staff set aside. In relation to the remainder of the summonses (six in all) it is implicit in the Tribunal’s reasoning that these were set aside on its own motion.

57 After hearing oral submissions on 11 May 1999, The Tribunal decided that the principal of the school, Mr Porteous should attend and give evidence but set aside all the summonses saying, at p 20 and 25 of the transcript:

Now if there are significant problems or difficulties at that point well then we may have to get some further evidence in but it seems to me that in terms of the matters that remain on the table, Porteous is the key player and we need to hear what he has to say.
And as to the other summonses, at this stage I propose to strike out all the other summonses but that doesn’t prevent them - a request being made for them to be reissued if appropriate but I’d encourage you Miss Morgan to wait and see what transpires on 31 May in that respect.

58 A preliminary issue arose as to whether the summonses had been finally set aside because the Tribunal had left open the possibility that they could be re-issued on application being made by Ms Morgan. The Crown submitted that since no such application had been made, Ms Morgan could not now raise their suppression as an issue.

59 In response to this submission Ms Morgan made a written submission on 3 February 2000 replying to the respondent’s submission dated 19 January 2000. The respondent’s submission stated, in part, that “. . . this lady is of the opinion that when a Judge says NO to her subpeona (sic) requests that he does in fact mean No - not, maybe if you ask me again later.”

60 We are satisfied on the basis of all the evidence that all the summonses, apart from that in relation to Porteous, were finally set aside on 11 May 1999. The Tribunal did not raise the matter again.

Legal principles in relation to setting aside a summons

61 A summons can be set aside on several grounds including:

· where it is not issued for the purpose of obtaining relevant evidence and the witness is unable to give relevant evidence ( Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 or

· where to require the attendance of a witness would be oppressive ( National Employers’ Mutual General Assoc Ltd v Waind and Hill [1978] 1 NSWLR 377 - in general, the test as to whether a summons is oppressive is whether production of the documents (or calling of oral evidence) is necessary for disposing fairly of the proceedings.( Arhill Pty Ltd v General Terminal Co Pty Ltd (1990) 23 NSWLR 545.)

62 According to the respondent, Tribunals have a wide discretion to curb repetition and prevent abuse of proceedings (Wednesbury Corp v Ministry of Housing & Local Government [No 2] [1966] 2 QB 275 at 302.

63 A fundamental issue to consider before determining whether the people summonsed could give relevant evidence is the appropriate approach for a court or tribunal to take in relation to cases seeking amendment of records under the Freedom of Information legislation. The transcript of 11 May 1999 at p 3 and following, discloses that the Tribunal and the parties discussed several cases relating to this issue. Reference was made to cases including Botany Council v The Ombudsman (1995) 37 NSWLR 357 at 369 Sime v The Minister for Immigration 21 AAR 369 at1995 and Bennett v University of New England(See Robinson 32.1720) and Re Warren and Department of Defence (AAT, 22 December 1993, File No N92/621, unreported).

64 The respondent submitted at the hearing on 5 May, that

We wouldn’t dispute that in principle evidence can be called to challenge the facts upon which opinions are based.” (p 6 of transcript 11/5/99)

65 What appears to have been decided by the Tribunal as a result of the discussion of these issues was that it was appropriate for witnesses to be called who could give evidence in relation to facts in dispute or in relation to the substratum of facts on which opinions were based. We agree with the Tribunal’s findings in this respect.

66 The first document in issue was Item 4, document 3, a letter from the Minister of Education to Ms Morgan dated 14 August 1996 which included the following paragraph:

Your reference to an incident at the school canteen on February 8, 1996 was investigated and a report provided to you by the Principal, Mr Peter Porteous.

67 Ms Morgan’s contention in relation to this paragraph was that Mr Porteous lied about carrying out an investigation and providing a report and that the lie was perpetuated by the Minister in this letter (see letter of 5 May 1999 from the applicant to the Tribunal).

68 The Tribunal’s ruling in relation to this passage was that:

. . . . Mr Porteous should attend and give evidence as to the facts asserted in that paragraph of the letter and in my opinion that’s where the matter should end unless there’s something that comes out in Porteous’ evidence that requires us to look further into the practices of the Minister’s office. . .(p 9 of 11/5/99 transcript)

But at this stage it seems to me that the question of whether that’s a factually accurate statement is a matter that can be disposed of by hearing what you’ve go to say what Mr Porteous has got to say about it so I think that means that the - in my opinion Porteous should attend at least for that purpose. (p 10 of 11/5/99 transcript)

69 Ms Morgan’s submission was that the teachers or other staff who had allegedly been part of the investigation should give evidence as to whether they were approached in relation to an investigation. Their evidence would be relevant to the question of whether an investigation had been conducted.

70 The second document, Item 6 document 12, was an undated memo written by Dr Alan Laughlin, Assistant Director General, Department of School Education, which said at dot point four:

Relations deteriorated when [the applicant] distributed a letter written to her by George Green, ADG, in response to her complaints with her comments on it, within the school grounds.

71 Ms Morgan alleged that relations did not deteriorate on that day, they deteriorated earlier over other incidents. Ms Morgan submitted that this passage was misleading because it implied that she was the “sole thing at fault for relations deteriorating that it was something that I had done and that Porteous had done nothing wrong. . “(transcript 11/5/99 at p 15)“

72 The Tribunal characterised the issue as whether a broader explanation should be given as to why relations deteriorated. Its ruling was that:

In terms of what people might attend and give evidence it seems to me Mr Porteous remains the only person relevant to that matter.” (Transcript 11/5/99 at p 15)

73 Ms Morgan did not identify at the hearing or in other correspondence which witnesses may have been able to give relevant evidence in relation to this passage.

74 The third document, Document 9, concerned an incident report dated 21 June 1996 written by Peter Porteous in the following terms:

“she entered the school premises at 2.30 [on 20 June 1996]with the enclosed paper and entered classroom shouting about myself and the school. She was very distressed and teachers who received the pamphlet were shocked and upset by her behaviour.”

75 Ms Morgan’s allegation in relation to this passage was basically that “Porteous lied.” She disputes that she was shouting and that teachers were shocked and upset by her behaviour. She said “I think the teachers should be questioned as to whether or not that is true.” (Transcript 11 May 1999 at p 17)

76 The Tribunal’s ruling on this point was:

I think we’ll just start with Mr Porteous and see what he’s got to say first of all.

77 The final passage in contention at the hearing was an attachment to an Incident Report written by Mr Porteous dated 24 June 1996, in particular the first two dot points on the second page:

Her increasing verbal aggression and irrational behaviour has caused me a great deal of concern for the safety of the staff and students of the school.
Following the incident at Plunkett Street a few weeks ago I was most concerned that there be no similar incident at Bourke Street.

78 Ms Morgan’s submission was that Porteous lied, but she agreed with The Tribunal’s characterisation of her concerns in terms that the facts on which his opinions were based were unfounded. The Tribunal’s decision in relation to this passage was that the summons in relation to Mr Porteous is the only one which should stand. His Honour said at p 20 of the 11/5/99 transcript:

. . . the conflicts are conflicts in relation to which Mr Porteous is the principal. Now there are surrounding people, there’s no question about that, there are surrounding people including several teachers but I would only be minded to take the matter any further if I had you know significant concerns about whatever Mr Porteous says here whe he gives evidence.

79 The Appeal Panel’s conclusion is that the Tribunal erred in law by applying a “wait and see” test, while still setting aside the summonses, rather than applying the correct test which is whether the summons was issued for the purpose of obtaining relevant evidence and whether the witness is able to give relevant evidence.

Effect of decision setting aside summonses

80 The effect of our findings is that the decision to set aside the summonses, should be set aside. In our view the question of which, if any, summonses should be set aside should be remitted to a differently constituted Tribunal to be heard and decided again.

81 Having decided that an error of law was made in relation to the decision to set aside the summonses, there is no need for the Appeal Panel to come to a view as to whether any errors of law were made in the 28 September 1999 decision. That decision cannot stand in view of our decision in relation to the summonses. Consequently the decision of the Tribunal of 28 September 1999 is set aside. The combined effect of the Appeal Panel’s findings is that the applicant’s entire application is remitted to be decided again by a differently constituted Tribunal.