N v Director General, Attorney General's Department (GD)

[2002] NSWADTAP 41

Appeal Panel

CITATION:	N -v- Director General, Attorney General's Department (GD) [2002] NSWADTAP 41
PARTIES:	APPELLANT N RESPONDENT Director General, Attorney General's Department
FILE NUMBER:	029012
HEARING DATES:	28/08/2002
SUBMISSIONS CLOSED:	08/28/2002
DATE OF DECISION:	12/06/2002
DECISION UNDER APPEAL:	N (No 2) -v- Director General, Attorney General's Department [2002] NSWADT 33
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Bolt M - Member
CATCHWORDS:	adequacy of reasons - opportunity to be heard - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013090
DATE OF DECISION UNDER APPEAL:	03/08/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Interpretation Act 1987 Victims Compensation Act 1987 (R) Victims Support and Rehabilitation Act 1996
CASES CITED:	N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33 Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 Douglas v Minister for Aboriginal Strait Islander Affairs (1994) 34 ALD 192 Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Russell v Duke of Norfolk [1949] 1 AER 109, 118 Absolon v NSW TAFE [1999] NSWCA 311 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Athens & Anor v Randwick City Council [2002] NWCA 83 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6
REPRESENTATION:	APPELLANT In person RESPONDENT N Sharp, barrister
ORDERS:	Appeal dismissed.

1 This is an appeal from a decision of President O’Connor in N (No 2) v Director General, Attorney General’s Department [2002] NSWADT 33. Written reasons for the decision were given on 8 March 2002. The decision relates to two applications for review (No. 013090 and No. 013091) filed by the appellant. President O’Connor dismissed application No. 013090 and directed that application No. 013091 be listed for a further planning meeting. The parties before the Appeal Panel agreed that this appeal relates exclusively to application No. 013090.

2 On 18 March 1998, the appellant applied to the Registrar of the Victims Compensation Tribunal (“VCT”) for access to certain documents under the Freedom of Information Act 1989 (FOI Act). The respondent located 13 documents that fell within the scope of the appellant’s FOI application. The documents related to matters heard by the VCT pursuant to the Victims Compensation Act 1987 (the 1987 Act) in which the appellant was either the victim or the alleged offender. The 1987 Act was repealed on 2 April 1997 by the Victims Support and Rehabilitation Act 1996. The VCT itself was continued under the new Act.

Statutory scheme

3 Under s 16 of the FOI Act a person has a legally enforceable right to be given access to an agency's documents in accordance with the Act. “Agency” is defined in s 6 to exclude “a body or office” that is exempt from the operation of the FOI Act, by virtue of s 9, in relation to all of its functions. The VCT is not one of those agencies, but by virtue of s 10, the FOI Act does not apply to “judicial functions” of courts and tribunals. Section 10 provides that:

Act not to apply to judicial functions of courts and tribunals
(1) For the purposes of this Act:
(a) neither a court nor a person who is the holder of an office pertaining to a court shall, in relation to the court's judicial functions, be taken to be, or to be included in, an agency, and
(b) neither a registry or other office of a court nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the court's judicial functions, be taken to be, or to be included in, an agency.
(2) For the purposes of this Act:
(a) neither a tribunal nor a person who is the holder of an office pertaining to a tribunal shall, in relation to the tribunal's judicial functions, be taken to be, or to be included in, an agency, and
(b) neither a registry or other office of a tribunal nor the members of staff of such a registry or other office shall, in relation to those matters that relate to the tribunal's judicial functions, be taken to be, or to be included in, an agency.

4 The term “judicial functions” is defined in s 6 of the FOI Act:

(1) "judicial functions", in relation to a court or tribunal, means such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it, and includes:
(a) in relation to a justice—such of the functions of the justice as relate to the conduct of committal proceedings, and
(b) in relation to a coroner—such of the functions of the coroner as relate to the conduct of inquests and inquiries under the Coroners Act 1980 .

5 The question before the Tribunal was whether the VCT is a “tribunal” under s 10(2) of the FOI Act, and whether the 13 documents held by the VCT were held as a result of the VCT exercising “judicial functions” relating to the hearing or determination of proceedings before it. The Tribunal decided that the VCT was a “tribunal” for the purposes of s 10(2) of the FOI Act (at [18]), and that the documents sought by the appellant related to the “judicial functions” of the VCT (at [30], [36]). Accordingly, the Tribunal dismissed application No. 013090 for want of jurisdiction.

Appeal Panel’s jurisdiction

6 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision.

Grounds of Appeal

7 While ten grounds of appeal are listed in the Notice of Appeal, the appellant agreed that those grounds fall within the following four categories:

· whether the Victim’s Compensation Tribunal is a “tribunal” for the purposes of s 10(2) of the FOI Act;
· whether the documents sought by the appellant relate to the “judicial functions” of the VCT;
· whether the appellant was denied procedural fairness by the Tribunal; and
· whether the Tribunal failed to provide adequate reasons for its decision.

8 The appellant also sought the Appeal Panel’s leave for the appeal to be extended to the merits of the Tribunal’s decision.

9 In their Reply, the respondent denied that the Tribunal had made any of the errors set out above. In relation to the appellant’s application for the appeal to extend to the merits of the Tribunal’s decision, the respondent noted that “it is unclear as to what questions of merit the appellant raises.” The respondent added, “in any case, no question of law properly arises, with the result that the tribunal should not grant leave to extend the appeal to an appeal on the merits.” The question of extension to the merits is dealt with at the end of these reasons.

Statutory framework and relevant issues

10 This appeal only relates to the preliminary question of whether the VCT is justified in denying the appellant access to the 13 documents on the basis of the exemption in s 10(2) of the FOI Act. Although the agency relied on exemptions including Clause 11(a) of Schedule 1, which exempts certain documents from disclosure by an agency which is otherwise subject to the FOI Act, the Tribunal’s reasons did not canvass those exemptions.

11 Based on s 10 of the FOI Act and the definition of “judicial functions” in s 6, the following questions are relevant to a determination of whether the Tribunal has jurisdiction to hear the appellant’s application:

(1) Is the VCT a “tribunal” within the meaning of that word in s 10(2) of the FOI Act?
(2) If so, are the 13 documents held by the agency which fall within the scope of the appellant’s application, held as a result of the exercise of the VCT’s “judicial functions”?

12 Both parties made lengthy submissions about the meaning of the term “judicial functions”. In our view those submissions were largely unnecessary because s 6 defines “judicial function” to mean “such of the functions of the court or tribunal as relate to the hearing or determination of proceedings before it.” If the word “means” is used in a definition, that definition is intended to be exhaustive. (Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 at 455; Douglas v Minister for Aboriginal Strait Islander Affairs (1994) 34 ALD 192 at 203.) Consequently, “judicial functions” are confined to functions relating to “the hearing or determination of proceedings” and the meaning of “judicial function” in any other legislation is not applicable.

13 An issue arises in these proceedings as to the relevant time at which the question of the agency’s exemption under s 10(2) must be determined. The appellant submitted that in determining whether the VCT is a tribunal exercising “judicial functions” the provisions of the 1987 Act, rather than the VCT’s current practice, is relevant because the matters to which the 13 documents relate were determined under the 1987 Act.

14 The appellant’s legally enforceable right to be given access to an agency’s documents arose when he lodged his FOI application on 19 March 1998. However, in our view the question of whether the VCT is a “tribunal” exercising “judicial functions” under s 10(2), must be determined as at the time each of the 13 documents was created by the VCT or obtained from other sources. The claims to which the appellant’s FOI application relates, were governed by the 1987 Act.

Is the VCT “a tribunal”?

15 The Tribunal addressed this question at [15] to [18]:

The present case involves a public authority that Parliament has chosen to call a 'Tribunal'. It is possible of course that a body might be called a 'Tribunal' but on closer examination of its statutory framework and mode of operation be found not to be a tribunal in the sense in which the term is normally used; and conversely, a body might not have the name 'Tribunal' or 'Court' but be found on closer examination to be capable of being so described. For instance, bodies with names such as 'Board' or 'Commission' often are given quasi-judicial functions; and would for the purposes of the FOI Act, constitute a 'court' or 'tribunal'.

In my view the following are some, at least, of the characteristics that a body called a 'tribunal' would be expected to possess. The body would -

Be impartial and detached from the ordinary processes of executive government
Have a defined jurisdiction
Receive claims or applications
Determine claims following a process of examining submissions, receiving evidence and assessing that evidence by reference to standards of proof
Use a process of assessment that gives rise to the making of a reasoned decision applying the relevant law
Make a final order that is binding.
The term 'tribunal' is used in contradistinction to the term 'court' to convey, I consider, that body has functions analogous to a court, but operates in a more informal way than a court and may have special procedures; and members that may differ in qualifications and expertise from judges. In this instance, membership is confined to Magistrates. (See generally Part 2.)

The VCT (as it operated at the time of the claims the subject of the present FOI applications) was governed by the original Act, the Victims Compensation Act 1987 . (The VCT now operates under the Victims Support and Rehabilitation Act 1996.) The respondent has supplied the Tribunal with a copy of the original Act. In my view it is clear, applying the above tests, that the VCT possessed the characteristics of a 'tribunal'.

16 The Tribunal went on, at paragraphs [19] to [21], to set out some of the characteristics of the VCT which support the Tribunal’s conclusion that the VCT is a Tribunal. In particular, the Tribunal stated that adherence to the rules of procedural fairness is not a requirement of s 10 of the FOI Act and, in any case, the VCT does adhere to the standards of procedural fairness.

17 In the appellant’s submission, the VCT does not possess all the characteristics that would be expected of a “tribunal”. The long title of the Victims Compensation Act 1987 (the 1987 Act) is “an act with respect to compensation for victims of violence.” The 1987 Act does not provide for the attendance at the hearing of any person other than the applicant or those persons whom the applicant nominates to attend. The appellant submitted that the language of the 1987 Act is not directed towards the “quelling of a controversy by the ascertainment of facts and the application of the law on the basis of antecedent rights and liabilities.” (See Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 and R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374-375.) In the appellant’s view, it is the hearing of applications made by applicants for award of compensation based primarily on the evidence provided by those applicants.

18 The appellant also submitted that:

· the proceedings in the VCT do not include an effective and unbiased “contradictor”;
· while the VCT is not exempted in the 1987 Act from applying the principles of procedural fairness, by not advising the nominated defendant of the hearing, the VCT has in fact ousted the principles of procedural fairness; and
· the VCT is not “impartial and detached from the ordinary processes of executive government” as noted by the Tribunal at [16], because “its staff, including Magistrates, Crown Solicitors and registry staff are all employed by the Attorney-General’s Department”.

19 The appellant further submitted that when listing the characteristics that a tribunal would be expected to possess, the Tribunal erred in law by not considering other relevant characteristics. The appellant set out the following twelve characteristics:

that the body has formal and procedural attributes that are similar to that of a court, including such things as the determination of matters in cases initiated by parties;
being empowered to compel attendance of witnesses, who may be examined on oath or affirmation;
a requirement to follow the rules of evidence although this is in no way conclusive);
the power to enforce compliance with the orders made by the body;
after investigation and deliberation, the body makes a conclusive determination or decision resolving disputed questions of fact or law;
the orders made by the body have conclusive effect;
the declarations of judgment must be made upon the basis of such law and facts as already exist;
the adjudication must be made on the basis of judicial principles and not be required to take into account extraneous policy matters;
the name or description of the body exercising the power is not relevant;
the duty to accord procedural fairness to parties and to ‘interested persons’ involved in the dispute;
that the body is amendable to control by the prerogative writs;
the adjudicators of the body are given judicial tenure.

20 In addition, the appellant submitted that the VCT does not adhere to the principles of procedural fairness, therefore it cannot be characterised as a Tribunal.

21 These points are not intended to be a complete summary of the appellant’s 50 typed pages of submissions.

22 The respondent also made lengthy submissions on the meaning of “tribunal” and “judicial functions.” Rather than set out these submissions separately, we have incorporated them in our reasons, to the extent that we agree with them.

Findings in relation to “tribunal”

23 The word “tribunal” is not defined in the FOI Act, or in the Interpretation Act 1987. Unless there is evidence of contrary legislative intention, words used in statutes should be given their ordinary meaning. The Macquarie Dictionary, 3rd edition, the Macquarie Library, defines “tribunal” to mean:

1. An adjudicative body set up by the government to investigate particular matters. 2. a court of justice. 3 a place or seat of judgment.

24 Section 10 makes it clear that courts and tribunals are two different things, so the second definition is not applicable. Both the first and third definitions apply to the VCT.

25 The following provisions of the 1987 Act establish that the VCT is an adjudicative body set up by the government to investigate particular matters, as well as being a place or seat of judgment.

26 Victims of violence, and in some cases close relatives, are entitled to make applications to the VCT for compensation. By s 18(1), the VCT was to consider all such applications, and by s 18(2) and (3), the Tribunal could elect to conduct a hearing in order to consider a particular application. Only Magistrates could be appointed as members (s.4(3)), and only members or authorised Magistrates could exercise the functions and jurisdiction of the VCT (s.7). Under s 18A, the VCT may investigate matters by requiring an applicant to undergo a medical examination.

27 Section 19(1) conferred a power on the VCT to determine the application, either by making an award of compensation or by dismissing the application. In determining the application, s 19(2) required the VCT to apply a balance of probabilities standard in determining whether an application was a victim of an act of violence or was a law enforcement victim. In making its determination, the VCT was required to give a statement of reasons (s.19(4)).

28 By s.27, a person who obtained an award for compensation or costs was then entitled to make an application to the Registrar of the VCT for payment of that award or costs. The Registrar was then required to forward the application to the Secretary of the Attorney General’s Department, and the Secretary was then required to make payment out of the Compensation Fund.

29 By s.30, the VCT was required to conduct hearings with as little formality and legal technicality as the circumstances permitted and was not required to apply the rules of evidence. However, an applicant was entitled to be legally represented (s.30(3)). Section 31 provided that hearings were to be conducted in public unless criminal proceedings were pending against the alleged offender, or the VCT determined to close the proceedings. Section 33 empowered the VCT to grant leave to allow applicants to call and examine witnesses; to give evidence on oath; to produce documents or exhibits to the Tribunal; and to otherwise adduce relevant matters. By s.34(1) the VCT was given a power to compel the production of documents and the attendance of witnesses, and by s.35 a power to compel witnesses to answer questions which were relevant unless the answer might tend to incriminate those persons.

30 In addition, on the basis of s 10(2) and s 6(1) of the FOI Act, a “tribunal” must at least be a body that hears or determines proceedings. We agree with the respondent’s submission that “proceedings” are invocations of a tribunal’s jurisdiction, in other words, applications to a tribunal to do some authorised act.

31 On the basis of these conclusions, we find that the VCT is “a tribunal” within the meaning of that word in s 10(2) of the FOI Act. In case we are wrong in that conclusion and, in accordance with the parties’ submissions, a “tribunal” also needs to be a body exercising judicial, or quasi judicial power, we adopt the respondent’s submissions and conclusions on that issue.

Judicial functions

32 The second question is wether the 13 documents held by the agency which fall within the scope of the appellant’s application, are held as a result of the exercise of the VCT’s “judicial functions”?

33 Under s 6(1) “judicial functions” means “such functions of the court or tribunal as relate to the hearing or determination of proceedings before it.” We agree with the respondent’s observation, that it is significant that the FOI Act defines “judicial functions” more broadly than the act of hearing or determining proceedings. It is clear that the VCT was required to make determinations in the course of proceedings, and could conduct hearings in order to do so. Each of the 13 documents was created or obtained by the VCT for the purpose of, or to facilitate, the VCT’s hearing or determining of proceedings, be they the award of compensation proceedings or the restitution proceedings. The registry of the VCT is not an “agency” in relation to these documents and so the appellant has no right of access.

Procedural fairness

34 The appellant alleged that the Tribunal denied him procedural fairness because he did not have the opportunity to provide submissions to the Tribunal before the decision was handed down. Consequently the only material before the Tribunal from the applicant was a one-page submission provided with the initial application for review.

35 The brief history of these proceedings is set out below:

18 September 2001: the Tribunal conducted a directions hearing in which the Tribunal directed the respondent to file and serve its submissions by 5 October 2001 and the appellant to file and serve his submissions by 14 October 2001. The matter was set down for hearing on 19 October 2001;
9 November 2001: the appellant received the respondent’s submissions and later the appellant requested an adjournment so that he could respond to the submissions;
16 October 2001: the Tribunal advised the parties that the hearing had been adjourned to 22 November 2001;
22 November 2001: the appellant emailed the Tribunal to advise that he would not be present at the hearing due to ill health. The Tribunal decided to hear the matter in the absence of the appellant and give him a further 14 days in which to file any submissions.
16 January 2002: the appellant wrote to the Tribunal advising that he was unable to provide submissions for at least a week because he was suffering from depression and his mother had recently died;
27 February 2002: the President wrote to the appellant advising him that he was finalising the decision and seeking clarification of his position in relation to certain issues; and
8 March 2002: the decision under appeal was handed down without the benefit of any written submissions from the appellant except those in the original application for review.

36 In his written submission to the Appeal Panel, the appellant wrote that:

The applicant does not allege that the Tribunal was in any way at fault in formulating its judgement without waiting for his submission. On the contrary, the applicant accepts and appreciates the attempts made by the Tribunal and its staff to extend him further time to make his submissions.
The applicant submits that as a result of matters beyond his control he was unable to provide the Tribunal with his submissions and was subsequently denied procedural fairness and natural justice.

37 Under s 72(2) of the ADT Act:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

38 The rules of natural justice, commonly known as the rules of procedural fairness, require that the Tribunal give each party an adequate opportunity to be heard in the proceedings. (Russell v Duke of Norfolk [1949] 1 AER 109, 118.) The provisions of the ADT Act appear to impose an even higher standard. Section 70 provides that:

The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:
(a) to present the party’s case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.

39 Finally s 73(4)(c) provides that:

The Tribunal is to take such measures as are reasonably practicable:
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

40 In our view, the Tribunal did take such measures as were reasonably practicable to ensure that the appellant had the fullest opportunity practicable to have his submissions considered. The hearing was adjourned at his request. When he was unable to attend the hearing, he was given 14 days to provide written submissions. When he failed to do so and the decision was close to being finalised, he was given a further opportunity to provide written submissions. While we appreciate that the appellant was suffering from depression and grieving the loss of his mother, the Tribunal nevertheless gave the appellant the fullest opportunity practicable to have his submissions considered. Indeed, the appellant acknowledged that the Tribunal was not at fault in formulating its judgement without waiting for his submission. In all the circumstances, we are satisfied that the Tribunal was not in breach of the rules of procedural fairness in handing down its decision without the benefit of the appellant’s submissions.

Adequacy of reasons

41 The giving of adequate reasons is an obligation which is "regarded as an incident of the judicial process": Absolon v NSW TAFE [1999] NSWCA 311 per Powell JA. The extent of that obligation has been expressed in terms of apprising "the parties of the broad outline and constituent facts of the reasoning on which he has acted", rather than "to require that a judge detail the way in which he has reasoned step by step to his conclusion": Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA.

42 The appellant’s submission relies to a significant extent on the Tribunal’s reasons in relation to the meaning of “Tribunal” and “judicial functions.” As set out above at paragraph 12, there was no need for the Tribunal to give detailed consideration to the meaning of the term “judicial functions” because that phrase is exhaustively defined in s 6 of the FOI Act. The appellant submitted that the Tribunal could have canvassed further attributes of a Tribunal in its reasons, and maintained that the description given by the Tribunal in paragraphs 18 to 21 is inadequate and unreasonable.

43 In our view, the Tribunal gave adequate reasons for its conclusions. Even if it did not do so, a failure to give adequate reasons does not, of itself, establish an error of law which vitiates the decision. The appellant must establish that the alleged inadequacy justifies the inference that the Tribunal has failed to exercise its powers according to law.

44 To these statements should be added the following from Giles JA's judgment in Athens & Anor v Randwick City Council [2002] NWCA 83:

What is sufficient to fulfil the duty, however, depends upon the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration.

45 The Tribunal’s reasoning was adequate, and even if it was not, any inadequacy was not sufficient to vitiate the decision.

Extension to the merits

46 As a threshold question, the Appeal Panel must be satisfied that the appeal raises a question of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. (See Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [4].) As no error of law has been found, the Appeal Panel does not grant leave to extend the appeal to a review of the merits. (See also Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP 6 at [25].)

Order

47 Appeal dismissed.