Tuffy v Vaughan (GD)
[2009] NSWADTAP 75
•24 November 2009
Appeal Panel - Internal
CITATION: Tuffy v Vaughan (GD) [2009] NSWADTAP 75 PARTIES: APPELLANT
Michael TuffyFIRST RESPONDENT
Leigh VaughanSECOND RESPONDENT
John WeateTHIRD RESPONDENT
Linda GillFILE NUMBER: 099060 HEARING DATES: 24 November 2009 SUBMISSIONS CLOSED: 24 November 2009 EXTEMPORE DECISION DATE: 24 November 2009
DATE OF DECISION:
22 December 2009BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Jurisdiction – appeal against costs order – primary decision not appealable – Held costs decision not appealable – Local Government Act 1993, ss 329, 330 – Administrative Decisions Tribunal Act 1997, s 112 DECISION UNDER APPEAL: Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242 FILE NUMBER UNDER APPEAL: 083287 DATE OF DECISION UNDER APPEAL: 09/21/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Local Government Act 1993CASES CITED: Borsak v Cheung (No 2) [2006] NSWADT 208
La France v Clarence [2004] NSWADT 256
Tuffy v Vaughan & ors [2009] NSWADT 316
Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242REPRESENTATION: APPELLANT
G Wells, agentFIRST AND SECOND RESPONDENTS
THIRD RESPONDENT
J Vaughan, solicitor, Bromhead Legal
In personORDERS: The appeal is struck out for want of jurisdiction.
1 The decision in this matter, striking out the appeal, was given ex tempore, on 24 November 2009. The appellant requested reasons within 28 days. The edited reasons follow. There is a further matter that remains (respondents’ application for their costs of the appeal).
Background
2 Mr Michael John Tuffy applied under s 329 of the Local Government Act 1993 for an order dismissing from civic office three councillors elected at the September 2009 poll for the Council of the Great Lakes Shire Council. The councillors were: Cr Leigh Vaughan, Cr John Weate and Cr Linda Gill.
3 Section 329 provides:
‘ 329 Can the holder of a civic office be dismissed?
(1) Any person may apply to the Administrative Decisions Tribunal for an order that a person be dismissed from civic office.
(2) On any such application, the Tribunal may order the dismissal of a person from civic office:
(a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or
(b) if the person is disqualified from holding civic office.
(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.
(4) If the proceedings are based on the ground that a person is disqualified from holding civic office, the Tribunal may refuse to order the dismissal of the person from that office if it is satisfied:
(a) that the facts and circumstances giving rise to the disqualification are of a trifling character, and
(b) that the acts which gave rise to that disqualification were done in good faith and without knowledge that the person would incur disqualification by doing those acts.
(5) Subsection (4) does not apply to a person who is disqualified from holding civic office by a decision of the Pecuniary Interest and Disciplinary Tribunal under section 482 or by a decision of the Governor under section 440B.
(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.’
4 Mr Tuffy has been represented throughout by a non-lawyer agent, Dr Graeme Wells.
5 A three member panel of the General Division of the Tribunal heard the application at Taree from 27-29 April 2009. On 29 April 2009, it delivered an ex tempore decision dismissing the application: recently published as Tuffy v Vaughan & ors [2009] NSWADT 316.
6 The respondents applied for costs and expenses.
7 The first two respondents had been legally represented. Cr Gill appeared without representation. The applicant also applied for costs from Cr Gill.
8 The Tribunal dealt with the applications without holding a hearing as permitted by s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The Tribunal decided (see Tuffy v Vaughan & ors. (no 2) [2009] NSWADT 242, 21 September 2009):
1. Mr Tuffy is to pay the costs of Ms Vaughan and Mr Weate as agreed or assessed.
2. Mr Tuffy is to pay Ms Gill’s disbursements in the sum of $2708.65.
3. Mr Tuffy’s application for costs against Ms Gill is dismissed.
9 On 15 October 2009 Mr Tuffy lodged a notice of appeal with the Registrar of the Tribunal purporting to appeal against the costs decision.
10 While a decision as to costs does not appear in the specific matters listed as ‘interlocutory functions’ at paragraphs (a) to (g) of s 24A(1) of the ADT Act, it has been regarded as a matter covered by the final catch-all category ‘(i) any other interlocutory issue before the Tribunal’. The Registrar listed the matter on 24 November 2009 before the President to consider whether leave to appeal should be granted pursuant to s 113(2A) and (2B) of the ADT Act.
11 The question arose as to whether the Appeal Panel had any jurisdiction, regardless of the question of leave. The President delivered the following reasons ex tempore (edited and revised for publication).
Oral Reasons (edited)
12 The matter we have before us is an attempt at appeal by the adversely affected party, Mr Tuffy, in relation to a costs order imposed by the Tribunal in s 329, Local Government Act proceedings. The order was that Mr Tuffy is to pay the costs of Ms Vaughan and Mr Weate as agreed or assessed and then to pay Ms Gill’s disbursements, which I take it are your expenses, Ms Gill, in the sum of $2708.65. A counter application by Mr Tuffy against Ms Gill for costs was dismissed.
13 The jurisdiction being exercised by the Tribunal, under s 329 of the Local Government Act, is what is known as an ‘original decisions’ jurisdiction within the typology that this Tribunal works under. The Tribunal’s business is divided conceptually into the making of ‘original decisions’ or the making of decisions that involve the ‘review of reviewable decisions’. Applications to dismiss from civic office are clearly on the ‘original decisions’ side of that dichotomy.
14 The ADT Act states at s 112(1)(a) that an original decision is only appealable if the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel.
15 Now, there is no express provision in the Local Government Act allowing for any appeal in respect of the decision dealing with the application to remove someone from civic office. Consequently the primary decision of the Tribunal below, dismissing Mr Tuffy’s application, is not appealable. Nor can he appeal to the Supreme Court.
16 The only right of appeal to the Supreme Court is by a person the subject of an order of dismissal, and it is limited to a question of law. See s 330 of the Local Government Act. So there is a kind of one way appeal to the Supreme Court against the decision at first instance.
17 The Tribunal has an express power under s 329(6) to award costs. There have been cases in the past where the Tribunal has made a costs award in favour of councillors the subject of unsuccessful dismissal applications (see, for example, La France v Clarence [2004] NSWADT 256; Borsak v Cheung (No 2) [2006] NSWADT 208).
18 Dr Wells submitted that the Appeal Panel had jurisdiction to deal with an appeal relating to the costs decision. He was unable to point to any provision giving the Appeal Panel jurisdiction.
19 Were I to take the view that seems to be asserted by Dr Wells – that there is some appeal jurisdiction available in respect of a costs decision in any class of proceedings in the Tribunal, the odd position would result that while the primary decision may not be able to be appealed, an ancillary decision could be appealed.
20 It seems to me that can not have been the intention of legislature, in this type of proceeding or at all.
21 In this case the costs order was made as a part of the disposal of an application calling on the Tribunal to make an ‘original decision’. The approach of the ADT Act, as previously noted, is that an original decision is only appealable if the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel.
22 In my view it must follow that if the primary decision made in the original decisions jurisdiction is not appealable then a second or ancillary decision is not appealable unless there was an express right of appeal granted in respect of the secondary decision. It seems to me to be highly unlikely that the Parliament would take the stance of not allowing an appeal on the primary matter but condoning an appeal on the secondary matter when there are no words to that effect in the legislation conferring the original jurisdiction.
23 A costs decision, as Dr Wells rightly observes, will often be influenced by the primary findings. It would be most disruptive to achieving finality in disputed returns cases if, by keeping the costs order alive via appeal, a collateral attack could then be mounted in relation to the primary findings.
24 In conclusion therefore, the legislative scheme of the Local Government Act, when read alongside the legislative scheme of the Tribunal, leads inevitably to the conclusion that a costs judgment made in s 329 proceedings cannot itself be appealed.
25 Therefore, it would appear to me that Mr Tuffy must look elsewhere for a remedy in respect of a costs decision. I suspect all that is left is judicial review via an originating summons in the Supreme Court.
26 The decision of the Appeal Panel today is that it is without jurisdiction to entertain these proceedings as they are misconceived in that the Tribunal, at Appeal Panel level, does not have any jurisdiction to hear an appeal in respect of a costs order made in s 329, Local Government Act proceedings.
27 The appeal is struck out for want of jurisdiction.
28 [At the close of the ex tempore reasons, the legal representative for the first two respondents foreshadowed an application for his clients’ costs wasted in respect of the purported appeal. Directions were made. There will be a separate decision issued in that regard.]
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