The Ombudsman v Robert Koopman

[2002] NSWSC 1203

CITATION:	The Ombudsman v Robert Koopman [2002] NSWSC 1203
CURRENT JURISDICTION:	Common Law Division Adminstrative Law List
FILE NUMBER(S):	SC 30060/02
HEARING DATE(S):	13 December 2002
JUDGMENT DATE:	13 December 2002
PARTIES :	The Ombudsman (Plaintiff) Robert Koopman (First Defendant) Administrative Decisions Tribunal (Second Defendant)
JUDGMENT OF:	Dunford J

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S) :	023005
LOWER COURT JUDICIAL OFFICER :	O'Connor DCJ

COUNSEL :	G Furness (Plaintiff) P Singleton (Defendants)
SOLICITORS:	Sparke Helmore (Plaintiff) IV Knight Crown Solicitor (Defendants)
CATCHWORDS:	Proceudre - courts & judges - proceedings to prohibit proceedings in Administrative Decisions Tribunal - assignment of business - Court of Appeal or Administrative Law List
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997, s 119 Ombudsman Act 1974 Supreme Court Act, ss 48, 51
CASES CITED:	Daykin v SAS Trustee Corporation [2001] NSWSC 58, 51 NSWLR 328 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494, 53 NSWLR 559 Puglisi v Administrative Decisions Tribunal Appeal Panel [2001] NSWCCA 298, 52 NSWLR 350
DECISION:	Proceedings to be removed into the Court of Appeal.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Dunford J

Friday, 13 December 2003

30060/02 The Ombudsman v Robert Koopman & anor

JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff seeks declaratory and prerogative relief to prevent the first defendant proceeding against him in the Administrative Decisions Tribunal, who is the second defendant, having regard to prohibitions on such proceedings which it is claimed are contained in the relevant legislation, the Ombudsman Act 1974.

2 When the proceedings commenced by the first defendant came before the Tribunal, a preliminary objection to such proceedings was taken by the plaintiff, but that objection was overruled and the President of the Tribunal who was hearing the matter ruled that he had power to proceed. It is in respect of that ruling that these proceedings are brought.

3 The President of the Tribunal who overruled the objection was His Honour Judge O'Connor, a Judge of the District Court of New South Wales, and the question therefore arises whether these proceedings should have been commenced in this List of this Division or in the Court of Appeal.

4 In Daykin v SAS Trustee Corporation [2001] NSWSC 58, 51 NSWLR 328, I reviewed the relevant legislation and concluded at para [5]:

“It follows therefore that although prima facie appeals under s 119 of the Administrative Decisions Tribunal Act are properly commenced in the Administrative Law List in the Common Law Division, that is subject to s 48 of the Supreme Court Act , and by virtue of that section there are assigned to the Court of Appeal proceedings on appeal and otherwise relating to "specified tribunals". A "specified tribunal" includes "(vii) a body of persons having amongst its number a judge or member, being a body functioning or purporting to function under any Act giving power to a body having amongst its number a judge or member, whether as judge or member or as designated person", and a judge or member is defined by subs (1)(b) as a judge or member of the Land and Environment Court, Industrial Relations Commission, the Dust Diseases Tribunal, the Government and Related Employees Appeal Tribunal, the District Court or the Compensation Court.”

5 Although these proceedings are not an appeal pursuant to s 119 of the Administrative Decisions Tribunal Act 1997, they are proceedings for prohibiting or otherwise restraining the Tribunal from proceeding in a matter before it and for determining by declaration matters concerning the powers of a specified tribunal: Supreme Court Act, s 48(2)(c) & (e).

6 As I held in Daykin, where the Tribunal is presided over by a Judge of the District Court, the Tribunal is a 'specified tribunal' and, accordingly, the proceedings are assigned by s 48 of the Supreme Court Act to the Court of Appeal.

7 Daykin has been approved by the Court of Appeal in Puglisi v Administrative Decisions Tribunal Appeal Panel [2001] NSWCCA 298, 52 NSWLR 350, and without referring to Daykin, Sheller J expressed a similar view in Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224.

8 I was also referred to the decision of Barrett J in NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494, 53 NSWLR 559, at para [44] where his Honour appears to have left open the question of the appropriate forum where the proceedings are for judicial review from a single member of the Tribunal, not the Appeal Panel; but I am satisfied that s 48 of the Supreme Court Act covers both a single member of the Tribunal and the Appeal Panel, provided the person or one of the persons presiding has the status referred to in s 48(1).

9 There is power under s 51 of the Act to permit the proceedings to remain in the Common Law Division, but having regard to the clear policy which is apparent from s 48, although it was appropriate to allow the urgent interlocutory proceedings to be dealt with in this Division, it is, in my view, more appropriate that the final determination in the matter be left to the Court of Appeal.

10 I therefore order that the proceedings be removed into the Court of Appeal, the matter is to be listed for directions on a date to be fixed by the Registry and notified to parties. The costs in the proceedings in this Division so far are reserved to the Court of Appeal.

Last Modified: 02/24/2003