PC v University of New South Wales

[2009] NSWADT 248

CITATION:	PC v University of New South Wales [2009] NSWADT 248
DIVISION:	General Division
PARTIES:	APPLICANT PC RESPONDENT University of New South Wales
FILE NUMBER:	063193 and 083144
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	14 September 2009
DATE OF DECISION:	28 September 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Whether the Tribunal has power to make orders restraining the conduct of the applicant’s trustee in bankruptcy.
CASES CITED:	John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
REPRESENTATION:	APPLICANT In person RESPONDENT Ms Sharp
ORDERS:	The applicant’s application seeking interlocutory restraining orders against her trustee in bankruptcy is dismissed.

REASONS FOR DECISION

1 The applicant has commenced these two substantive proceedings in the Tribunal, each proceeding alleging that the respondent has acted in breach of privacy legislation. The two proceedings are being heard at the same sittings, though as separate matters, given that the acts in breach of privacy law are different in each matter. Both proceedings are now part heard.

2 The proceedings have been protracted, in part by reason of an appeal in one matter being taken to the Appeal Panel and in part by reason of the applicant’s employment overseas. This latter aspect has brought about the interlocutory application which is under consideration here. A sequestration order has been made against the applicant’s estate and she has been declared bankrupt on the application of the respondent, the relevant proceedings arising from a debt owed to the respondent by the applicant. The applicant’s bankrupt status has caused her concerns should she return to Australia to prosecute her proceedings in this Tribunal. Her concern is that her trustee in bankruptcy may possibly exercise powers, conferred under bankruptcy legislation, to require her to surrender her passport and to prevent, or inhibit, her departure from Australia after the finalisation of the Tribunal proceedings. Consequently, the applicant has sought certain interlocutory orders from the Tribunal.

3 This application was made during the course of a directions hearing on 14.09.09. At that hearing the proceedings were set down for hearing on 18, 21 and 22 December 2009. The parties acknowledged the need to complete the hearing of both matters at this hearing and to facilitate this it was agreed that matter 063193 would be heard first and that the parties would be allocated equal time across these three days, with directions being made as required to ensure that the proceedings are completed. In relation to the interlocutory orders sought, the parties have filed written statements and submissions which have been marked as exhibits AA, AB and RA. Exhibit AA contains a letter from the applicant dated 25.07.09 which sets out the three interlocutory orders that the applicant seeks. The first order seeks to restrain the applicant’s trustee in bankruptcy (and others) from interfering with the applicant’s ability to both enter and leave Australia; the second seeks to restrain any surrender of her passport; and the third seeks to prevent any acts stopping the applicant from departing Australia after the conclusion of the Tribunal hearing.

4 The applicant’s submissions have not identified any relevant source of power to enable the making of such orders. In essence, the applicant submits more generally that the Tribunal must necessarily be possessed of powers that enable it to control its proceedings so as to ensure that there is a proper opportunity for a party to attend a hearing and prosecute the case at hand. Quite clearly, this formulation expresses a principle that ought to be followed whenever it is lawfully open to the Tribunal to do so. However, it is a statement of general principle rather than a proposition interpreting the legislation. The applicant has not identified any specific provision in the Tribunal’s enabling legislation which could give effect to this general principle.

5 The respondent’s submissions argue that the Tribunal does not have any power whereby it may properly make any of the interlocutory orders that the applicant seeks; there are no express or implied statutory powers, the respondent submits, and there are no inherent powers. The Respondent’s submissions take the correct approach: in order for the Tribunal to make the orders sought, the source of any relevant power must be identified as an initial step.

6 Whilst the applicant has no legal qualifications, her submissions have clearly identified the basis on which she asserts that the requisite power exists. However, without the assistance of detailed legal submissions in favour of the existence of the power, it would not be wise for the Tribunal to embark upon a general dissertation as to the scope of the Tribunal’s powers: rather, the better approach is for the Tribunal to simply address whether it has the power to make the specific orders sought by the applicant, namely orders which restrain the acts of the applicant’s trustee in bankruptcy. This involves considering the Tribunal’s statutory powers, both express and implied, and the question whether there are any inherent powers enabling the orders sought.

7 The applicant’s argument is that, as the Tribunal has a duty to ensure a fair hearing and that the applicant has an adequate opportunity to present her case, the Tribunal would fail in its duty should it not take steps to restrain any acts by others that may impede the applicant in attending the hearing of the matter. Consequently, the applicant argues, the Tribunal must have the requisite power to make appropriate orders to prevent this from occurring. The argument is logical, but it is not conclusive of the issue.

8 The Tribunal derives its powers from statutory instruments, its enabling statute in particular. Powers conferred by statute may be express or implied, however in each case it is a matter of statutory interpretation of the relevant legislative provisions. The statutes do not confer any powers upon the Tribunal in terms which expressly enable it to make the restraining orders sought. To assist the applicant in understanding this ruling, it may be noted that the powers conferred upon the Tribunal to issue summonses to persons requiring them to either attend to give evidence or to produce documents is an example of the grant of a power which is expressly worded to affect the lawful conduct of persons who are not parties to the proceedings: in the absence of a summons, such persons may lawfully decline to attend or to produce documents.

9 It is well accepted though, that a power may be conferred on a Tribunal by necessary implication: it need not always be expressly stated. However, the several powers that are conferred on the Tribunal, such as the powers to review administrative decisions and to make various types of directions and the like, do not suggest, by necessary implication, that the Tribunal is enabled to make orders restraining the applicant’s trustee in bankruptcy in any way so as to give effect to these powers.

10 The respondent’s submissions discuss the question of inherent powers. In the absence of detailed argument from the applicant on this point, it is not apposite for the Tribunal to embark on any general dissertation as to the Tribunal’s inherent powers, if any. Consideration of the general question whether the Tribunal does, or does not, have inherent powers should only be embarked upon after full argument. However, assuming that the principles concerning inherent power apply to the Tribunal, any such power that the Tribunal may have, as the respondent points out, could not extend to enabling orders to be made which would restrain the applicant’s trustee in bankruptcy from exercising powers that are conferred on the trustee by Commonwealth bankruptcy legislation (following the limitations discussed in John Fairfax & Son Ltd v Police Tribunal of New South Wales Anor (1986) 5 NSWLR 465 at 477).

11 For these reasons the Tribunal does not have power to make the interlocutory orders that the applicant seeks and, accordingly, declines to make those orders.