WL v Randwick City Council

[2009] NSWADTAP 10

Appeal Panel - Internal

CITATION:	WL v Randwick City Council [2009] NSWADTAP 10
PARTIES:	APPELLANT WL RESPONDENT Randwick City Council
FILE NUMBER:	089080
HEARING DATES:	30 January 2009
SUBMISSIONS CLOSED:	30 January 2009
EXTEMPORE DECISION DATE:	30 January 2009
DATE OF DECISION:	3 March 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Handley R - Deputy President; Bolt M - Non-Judicial Member
CATCHWORDS:	Leave to appeal interlocutory orders, applicability of s 347 of Legal Profession Act 2004
FILE NUMBER UNDER APPEAL:	073294
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Legal Profession Act 2004
CASES CITED:	Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 Johnson Tiles Pty Limited v Esso Australia Co-operative Co Limited [1990] VR 355 at 364 Décor Corporation Pty Limited v Dart Industries Inc [1991] 104 ALR 621 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 Bennett v Chief Executive Officer Australian Customs Service [2004] FCAFC 237 Rich v Harrington [2007] FCA 1987 Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Limited (trading as Café Tiffany’s) [2006] NSWCA 185
REPRESENTATION:	APPLICANT In person RESPONDENT A Seton, solicitor
ORDERS:	1 The Appeal Panel has no jurisdiction to entertain an appeal against the non-production by the respondent of “Mr Kerr’s email which prompted Mr David Kelly to write an email in reply dated 24 08 2005” 2 Leave to appeal against the following interlocutory decisions is refused:a) to conduct an oral hearing rather than determine the application “on the papers” as permitted by section 76 of the Administrative Decisions Tribunal Act 1997b) that the respondents had not waived legal professional privilege in relation to any legal advice that it had obtained in relation to its defence 3 Leave to appeal against the following interlocutory decision is granted;That parties to proceedings under s 55 of the Privacy and Personal Information Protection Act 1998 are not required to comply with the provisions of s 347 of the Legal Profession Act 2004; 4 The Tribunal’s decision that parties to proceedings under s 55 of the Privacy and Personal Information Protection Act 1998 are not required to comply with the provisions of s 347 of the Legal Profession Act 2004 is affirmed 5. The respondent’s application for costs is refused.

Introduction

1 WL has requested written reasons for an oral decision given on 30 January 2009.

2 WL is the lessor of premises in a block of units in Coogee. In June 2005 the Council received a complaint that renovations had been carried out for which the complainant believed no development application had been lodged. On 7 June 2006 a Council Officer, Mr Kerr, attended the block of units and was allowed entry by a person who was apparently in occupation and carrying out work there at the time. Mr Kerr took some photographs. The substantive matter is an application by the appellant pursuant to section 55 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) for a review of the conduct of the Randwick City Council in relation to its dealings with alleged personal information of WL.

3 WL has appealed against four interlocutory decisions made by the Tribunal on 16 October and 28 November 2008. Those decisions were:

1. that the respondent was not required to file a certificate under s 347 of the Legal Profession Act 2004;

2. that the respondent had not waived legal professional privilege in relation to any legal advice that it had obtained in relation to its defence;

3. to take no action in relation to the non-production by the respondent of any document in response to a summons requesting an email between a Mr Kelly and a Mr Kerr;

4. to conduct an oral hearing rather than determining the application “on the papers” as permitted by section 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act).

Acceptance out of time

4 In relation to the second interlocutory decision, that the respondent had not waived legal professional privilege, we have decided to accept that appeal even though it was lodged out of time. The Tribunal made that decision on 16 October 2008. Section 113(3) of the ADT Act, says that, “An appeal under this Part must be made within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision . . . or within such further time as the Appeal Panel may allow.” We note, in this case, that no written reasons were requested or furnished. The oral decision was made on 16 October. The appellant says that he was anticipating that the Tribunal would re-visit that decision on the 28 November when the Tribunal reconvened. He also says that not all his submissions were dealt with on 16 October and that is the reason he did not lodge the appeal until 15 December. We accept those reasons for late lodgement and extend the time to lodge the appeal in respect of that decision to 15 December 2008.

No appealable decision

5 In relation to the third decision, we have decided that there has been no appealable decision made. Under section 112 of the ADT Act an appealable decision is a “decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for a review of a reviewable decision.” The appellant objected to the fact that the respondent has not produced, in response to a summons, an email between a Mr Kelly and a Mr Kerr that they said should exist. The appellant summonsed the following document:

Mr Kerr’s email which prompted Mr David Kelly to write an email in reply dated 24 08 2005 which is in the Tribunal’s possession in Attachment 12b.

6 The appellant said that this document had not been produced. He submitted that if the document is not in the form of an email, then it may be available in another form such as a file note or other record. The respondent said that no documents exist in answer to the request made in the summons. The appellant says that he has written letters to the Tribunal requesting a ruling on the non production of that document if it exists. No decision has been made by the Tribunal in relation to that matter and therefore we are of the view that there is no appealable decision, interlocutory or otherwise. Consequently the Appeal Panel has no jurisdiction to determine an appeal in relation to that point.

Principles for determining whether to grant leave to appeal against interlocutory decisions

7 The next question is whether leave should be granted for the remaining three interlocutory decisions to proceed. Under section 113(2A) of the ADT Act an appeal does not lie to the Appeal Panel against an interlocutory decision except by leave of the Appeal Panel. When applying similar provisions, the High Court has pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 175. Nevertheless, the general rule is that the discretion to grant leave to appeal from interlocutory decisions should only be exercised where there are substantial reasons for doing so: Johnson Tiles Pty Limited v Esso Australia Co-operative Co Limited [1990] VR 355 at 364. In Décor Corporation Pty Limited v Dart Industries Inc [1991] 104 ALR 621 at 622 the full Federal Court said in similar circumstances that leave should not be granted unless:

a) in all the circumstances the decision is attended with sufficient doubt to warrant its re-consideration on appeal; and

b) substantial injustice would result if leave were refused, supposing the decision to be wrong.

8 In addition, where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 at [8].

Should leave be granted?

9 Section 347certificate issue. Both parties agree that this is a matter in which the Appeal Panel should grant leave. We agree with those submissions for the following reasons. The application of section 347 of the Legal Profession Act 2004 to matters in the Administrative Decisions Tribunal has not been determined either by this Tribunal or by any superior courts. At one stage the Tribunal had on its website a form of certificate that parties were invited to fill in. That certificate was said to relate to proceedings under the PPIP Act. That document on the website has since been removed and is not required in proceedings of this kind before the Tribunal. However, this is a matter which has not been determined, either by the Tribunal or by any superior courts and it is an issue which is attended by some doubt. In addition it is arguable that there would be a substantial injustice to the appellant if we do not give leave to determine that issue because the hearing would proceed in the absence of such a certificate. The appellant would not have the benefit of an assurance that there were reasonable prospects of success in relation to the defence. We grant leave under section 113 (2A) of the ADT Act in respect of that decision.

10 Waiver of privilege. The next decision is that the respondent had not waived legal professional privilege to any legal advice that it had obtained in relation to its defence. The appellant maintained that legal professional privilege had been waived and relied on a “without prejudice” letter from the respondent to the appellant dated 12 October 2007 which said, in part:

Council is presently taking legal advice with respect to the decision of the ADT Appeal Panel and is considering lodging an appeal in the Supreme Court.

11 By way of summons to the respondent the appellant sought “legal opinion acquired by the Respondent in relation to their defence case”. The Tribunal made a decision about this matter saying that the letter that the respondent had written to the appellant did not disclose the substance of the advice or, indeed, whether or not such an advice existed. In our view, that decision is not attended with sufficient doubt to warrant its reconsideration on appeal. Our understanding of the relevant law which includes Bennett v Chief Executive Officer Australian Customs Service [2004] FCAFC 237 and Rich v Harrington [2007] FCA 1987, satisfies us that the Tribunal’s decision is not attended with sufficient doubt to justify its reconsideration. More importantly, there is no substantive injustice which would result if leave were refused supposing that decision to be wrong. That is because, in our view, even if the decision was wrong and legal professional privilege had been waived, any legal advice would not address an issue in dispute before the Tribunal. The Tribunal’s role is to come to its own view as to the merits of the case. The opinion of a barrister or solicitor, in relation to any matter, would not have the effect of determining the way a Tribunal was to decide that matter. Consequently, we fail to see how such an advice would be relevant or would assist the appellant in his application. For that reason there is no substantial injustice in us refusing leave.

12 Refusal to determine application ‘on the papers’. The final matter on which the appellant has appealed is a decision of the Tribunal to refuse to conduct a hearing on the papers as allowed in section 76 of the ADT Act. That provision states that:

The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing, if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.

13 The Tribunal decided, in this case, that the issues for determination could not be adequately determined in the absence of the parties. The reason for that decision was that the appellant took issue with some of the evidence provided by the respondent’s witnesses, in particular Mr Kerr. The Tribunal’s view was that it was preferable to test that evidence by an oral hearing in which that party was subject to cross-examination rather than to determine the matter on the papers. That course ensures procedural fairness for all parties in the sense that not only does the Tribunal have the benefit of any written submissions about the veracity of the evidence but the Tribunal has the opportunity to observe the witness giving evidence and to test the witness’ credibility either itself or through the appellant asking questions of the witness.

14 In our view, a decision of that kind squarely relates to a matter of practice and procedure and not to a substantive matter. It is not attended with any doubt whatsoever in terms of the power of the Tribunal to make that decision and the appellant has not explained how that discretion miscarried in the circumstances of this case. Neither would refusing leave result in a substantial injustice because not only will the appellant and the respondent be able to make written submissions about the veracity of the evidence, they will have the opportunity, if they so wish, to question that witness and to put to that witness fairly and squarely the matters with which they disagree.

Section 347 certificate

15 The appellant’s submission was that the Tribunal should have refused to allow the respondent to file its material because it was not accompanied by a certificate under section 347 of the Legal Profession Act 2004 that, “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the . . . defence has reasonable prospects of success.” We affirm the Tribunal’s decision that section 347 of the Legal Profession Act 2004 does not apply to proceedings in this Tribunal under the PPIP Act.

16 The Tribunal formerly advised parties on its website that such a certificate was required in certain proceedings including those lodged under section 55 of the PPIP Act. That advice has now been removed from the Tribunal’s website. Section 347 states that:

347 Restrictions on commencing proceedings without reasonable prospects of success

(1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice.

(2) A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(3) Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.

(4) In this section:

"court documentation" means:

(a) an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or

(b) an amended originating process, defence or further pleading, or

(c) a document amending an originating process, defence or further pleading, or

(d) any other document of a kind prescribed by the regulations.

"cross-claim" includes counter-claim and cross-action.

17 There are several elements to section 347. One is that it applies only to legal practitioners. We are satisfied, in this case, that the respondent is represented by a legal practitioner. Secondly, it applies to a claim or a defence to a claim for damages. We are satisfied that the proceedings before the Tribunal relate to a claim for damages under section 55 of the PPIP Act. The remaining element is that the certificate applies to court documentation filed in a court or court registry. That element gives rise to two questions. The first is whether the Tribunal is a court for the purposes of this provision and the second is whether or not the respondent to these proceedings is required to file “court documentation”.

18 Is the Tribunal a court for this purpose? There is no definition of court in the Legal Profession Act. “Tribunal” is defined in the Act to mean the Administrative Decisions Tribunal. That definition relates to powers that this Tribunal has to discipline legal practitioners. Section 344(1) provides that “This Division extends to legal services in connection with proceedings in a court on appeal as well as a court at first instance.” This provision reinforces the notion that s 347 applies to courts both when determining a matter at first instance and on appeal.

19 The term “litigious matter,” is defined in section 302 of the Legal Profession Act 2004 to mean “a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal.” The appellant’s submission was that this definition meant that the whole of the Legal Profession Act 2004 applies to courts and tribunals. As we have explained, that is clearly not correct. The term, “litigious matter” does not appear in section 347 of the Legal Profession Act 2004 or in any other provision in Division 10. The term is referred to in section 309 relating to disclosure of costs to client, s 313 in relation to disclosure of settlement of litigious matters and s 324 relating to conditional costs agreement involving uplift fees.

20 There was also some suggestion that the definition of ‘court’ in the Civil Liability Act 2002 had some relevance to whether or not the definition of ‘court’ in Division 10 extended to tribunals. The legislative history of Division 10 is somewhat complicated, however, the pre cursor to Division 10 was Division 5C of Part 11 of the Legal Profession Act 1987. Division 5C was originally enacted by Schedule 2 to the Civil Liability Act 2002 which had the effect of amending the Legal Profession Act 1987. To that extent, Division 5C was originally part of the Civil Liability Act in that it was contained in a Schedule to that Act. That situation is no longer the case because the Legal Profession Act 1987 was repealed and replaced with the Legal Profession Act 2004. That Act severed any connection with the Civil Liability Act.

21 The question of whether the Tribunal is a court has been addressed by the Court of Appeal in a decision of Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Limited (trading as Café Tiffany’s) [2006] NSWCA 185. The issue in Skiwing was whether the Tribunal was a court of the State for the purposes of Chapter 3 of the Constitution. The purpose of that inquiry was to establish whether the Tribunal could exercise federal jurisdiction under the Trade Practices Act 1974 (Cth). In the course of His Honour’s decision Spigelman CJ summarised the factors which operated for and against regarding the Tribunal as a court of a state. That summary is set out at paragraphs 26 and 27 of the judgment. Having outlined those factors, Spigelman CJ said at paragraph 29, as follows:

For many statutory purposes, the Tribunal would have sufficient of the characteristics of a court to answer a statutory provision relating to “courts”. However, the constitutional expression “court of a State”, picked up in s 86(2) of the Trade Practices Act, adopts a more stringent requirement than may be intended by the State Parliament when using the word “court” in a statute. The issue arises under a Commonwealth statute, which invokes s 77(iii) of the Constitution.

22 In Skiwing it was ultimately decided that the Tribunal was not a court for the purposes of Chapter 3 of the Constitution. However, Spigelman CJ’s decision left it open as to whether, in a particular statutory context, the Tribunal may be a court. However for the reasons we have given, we have come to the view that the word “court” in Division 10 is intended to apply to courts in the narrower sense and not to a Tribunal such as the ADT.

23 Is the respondent required to file “court documentation”? “Court documentation” is defined in section 347(2). Clause 118 of the Legal Profession Regulation (2005) provides that certain documents are court documents:

The following documents are prescribed for the purposes of paragraph (d) of the definition of "court documentation" in section 347 (4) of the Act:

(a) a document initiating an appeal or cross-appeal,

(b) an application for leave to appeal or cross-appeal,

(c) a defence to an appeal or cross-appeal,

(d) a document that amends a document of the kind referred to in paragraph (a), (b) or (c),

(e) an amended document of the kind referred to in paragraph (a), (b) or (c).

24 We are satisfied, on the basis of this definition, that the Division 10 relates only to courts and only to court documentation. The kind of documentation that the Tribunal requires to be filed in matters under section 55 of the PPIP Act does not include a defence. Section 55 of the PPIP Act allows a person who made an application for internal review of the respondent’s conduct, but who was not satisfied with the findings of the review or the action taken by the agency, to apply to the Tribunal for a review of that conduct. A person makes that application on a form entitled “Application for review of conduct of a public sector agency under the Privacy and Personal Information Protection Act 1998 and/or the Health Records and Information Privacy Act 2002.” Following the filing of that application the matter is set down for a planning meeting where directions are generally made that the respondent give to the applicant, the Tribunal and the Privacy Commissioner the application for internal review and the internal review decision. The applicant is then directed to provide any evidence and submissions on which he or she intends to rely within a specified period of time. Finally, the agency is directed to provide any evidence or submissions in reply within a further specified period of time. Proceedings under the PPIP Act are not commenced by a statement of claim or any other similar originating process nor is the agency required to file a document in the nature of defence. The Tribunal is reviewing conduct of the agency in a public law context not assessing a conventional adversarial dispute between private parties.

25 Finally, Division 10 is a Division which imposes an onerous requirement on legal practitioners to provide a certificate attesting to certain matters before a claim or defence for damages is made. The serious nature of that requirement suggests that we should not easily reach the conclusion, in the absence of express words, that it is applicable to proceedings in this Tribunal. The provisions are not penal in the sense of imposing criminal sanctions but there are potential disciplinary and cost consequences for lawyers who act without reasonable prospects of success. That fact supports our view that these provisions should not be held to apply to this Tribunal without a clear indication that Parliament intended the Tribunal to be subject to those provisions.

Costs

26 The respondent applied for costs. Section 88 of the ADT Act says:

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, "costs" includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.

27 The main matter on which Mr Seton relies is s 88(1)(c), that is, “The relative strengths of the claim made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law.” The Tribunal made several decisions in relation to interlocutory matters in reasons given on 16 October and 28 November 2008. We agree with the appellant that those reasons were short. The appellant did not ask for the Tribunal to provide written reasons in which case it may have given fuller reasons for its decision. Without having detailed reasons for decision, the appellant appealed against four interlocutory decision. We granted leave in relation to one of those decisions but ultimately affirmed the Tribunal’s decision. Not all the decisions against which the appellant appealed had no tenable basis in fact or law. While we gave leave for only one matter to proceed, there were real questions of law evident in relation to that matter and also in relation to the decision about waiver. While a trained legal practitioner may not have decided to appeal against the other interlocutory decisions, the appellant in this case is not legally represented and cannot be expected to be able to differentiate between a case which has some merit but is unlikely to be successful and a case which has reasonable prospects of success. In those circumstances, given the general rule that each party is to bear their own costs, we are not satisfied that it is fair to make a costs order on the basis of any of the matters in section 88 of the ADT Act.

Orders

1. The Appeal Panel has no jurisdiction to entertain an appeal against the non-production by the respondent of “Mr Kerr’s email which prompted Mr David Kelly to write an email in reply dated 24 08 2005”.

2. Leave to appeal against the following interlocutory decisions is refused:

a) to conduct an oral hearing rather than determine the application “on the papers” as permitted by section 76 of the Administrative Decisions Tribunal Act 1997

b) that the respondents had not waived legal professional privilege in relation to any legal advice that it had obtained in relation to its defence3. Leave to appeal against the following interlocutory decision is granted;

3. That parties to proceedings under s 55 of the Privacy and Personal Information Protection Act 1998 are not required to comply with the provisions of s 347 of the Legal Profession Act 2004;

4. The Tribunal’s decision that parties to proceedings under s 55 of the Privacy and Personal Information Protection Act 1998 are not required to comply with the provisions of s 347 of the Legal Profession Act 2004 is affirmed.

5. The respondent’s application for costs is refused.