YN v Director General, New South Wales Department of Housing (GD)

[2006] NSWADTAP 9

Appeal Panel - Internal

CITATION:	YN v Director General, New South Wales Department of Housing (GD) [2006] NSWADTAP 9 This decision has been amended. Please see the end of the decision for a list of the amendments.
PARTIES:	APPELLANT YN RESPONDENT Director-General, New South Wales Department of Housing
FILE NUMBER:	069009
HEARING DATES:	6/02/2006
SUBMISSIONS CLOSED:	02/06/2006
EXTEMPORE DECISION DATE:	02/06/2006
DATE OF DECISION:	03/07/2006
BEFORE:	Chesterman M - ADCJ (Deputy President)
CATCHWORDS:	leave to appeal interlocutory decision
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	053207
DATE OF DECISION UNDER APPEAL:	01/17/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
REPRESENTATION:	APPELLANT No appearance RESPONDENT M Hay, barrister
ORDERS:	1. Leave to appeal is refused; 2. The appeal is dismissed; 3. The Appellant’s application for an urgent interlocutory order is dismissed; 4. The costs of these proceedings before the Appeal Panel are to be treated as a component of the costs of the whole proceedings, to be determined by the Tribunal at an appropriate future time.

1 These are written reasons for a decision delivered ex tempore on 6 February 2006. They were requested by the Appellant on 8 February 2006, under s 89(3) of the Administrative Decisions Tribunal Act 1987 (‘the ADT Act’).

2 On 31 January 2006, the Appellant, Mr YN, filed a Notice of Appeal against directions given by Magistrate N Hennessy, Deputy President, in proceedings that he had instituted under the Freedom of Information Act 1989 against the Respondent, who is the Director-General, New South Wales Department of Housing. The Appellant also filed an Application for an Urgent Interlocutory Order staying these directions.

3 The challenged directions were to the effect that (1) the Appellant should file and serve by 27 January 2006 any evidence that he wished to tender in response to an application that the Respondent had made for dismissal of the proceedings that he had instituted under the Freedom of Information Act; and (2) that the hearing of this application for dismissal was to take place on 8 February 2006.

4 In his Notice of Appeal, the Appellant set out a number of grounds on which the Respondent’s application for dismissal should be rejected and contended that, because these grounds existed and should have been taken into consideration by Deputy President Hennessy, she erred in giving directions for the hearing of the application for dismissal.

5 The appeal and accompanying application for an urgent interlocutory order were set down for hearing at 2.30 p.m. on 6 February 2006. The Registry advised the parties of this date and time by letter faxed on 1 February.

6 Since the appeal was against an interlocutory decision of the Tribunal, it was subject to a requirement that leave be granted by the Appeal Panel (ADT Act, s 113(2A)). By a second letter dated 1 February 2006, the Registry pointed this out to the Appellant, enclosed the Tribunal’s form of Application for Leave to Appeal from an Interlocutory Decision and invited him to complete it and send it back to the Registry.

7 By a letter faxed to the Registry on 3 February 2006, the Appellant indicated that he did not propose to file an Application for Leave to Appeal. In addition, he asked the Tribunal to grant an immediate stay of Deputy President Hennessy’s directions without a hearing requiring the attendance of both parties, as he would be unable to attend the Tribunal on 6 February. His reason for not being able to attend was that he had another court case scheduled for that day ‘since long ago’.

8 In the alternative, the Appellant requested in his letter of 3 February that the dismissal hearing scheduled for 8 February should be changed to a later date ‘to allow time for the Appeal Panel to fully deal with this appeal’. He argued that ‘trying to rush this matter through on either 6 or 7 February 2006, just before the dismissal hearing may result in injustice and/or errors that are grounds for further appeal’. He said nothing to suggest that he could not or would not attend the dismissal hearing on 8 February if his appeal proved unsuccessful.

9 As this appeal concerned an interlocutory issue, the Appeal Panel was constituted by a single presidential judicial member, assigned by the President pursuant to s 24A(2) of the ADT Act.

10 At the hearing before the Appeal Panel on 6 February 2006, the Appellant did not appear. Mr Hay, counsel for the Respondent, applied for an order that the appeal should be dismissed with costs.

11 The Appeal Panel’s decision on the principal matter is that leave to appeal should not be granted and that the appeal and the accompanying application for an urgent interlocutory order should be dismissed. Its reasons are as follows.

12 First, the grounds that the Appellant put forward in his Notice of Appeal did not in any way challenge the appropriateness of Deputy Hennessy’s directions. These, it will be recalled, were concerned solely to set dates and times for the filing of evidence prior to the hearing of the Respondent’s application for dismissal and for the hearing itself. The Appellant did not allege any prejudice that he suffered from these procedural measures or advance any other reason why these dates and times were inappropriate. His assertion that directions of this nature may not properly be given unless the member giving them is fully apprised of the merits of the case to which they relate is clearly wrong in law.

13 The matters that the Appellant set out in his Notice of Appeal by way of opposition to the Respondent’s application might clearly be of relevance in determining whether this application is meritorious – this being a question on which the Appeal Panel expresses no opinion. But these matters have nothing to do with the question whether the challenged directions should have taken the form that they did.

14 Secondly, the Appellant’s failure to appear at the hearing of 6 February, coupled with the lack of any indication from him that he would be absent from the dismissal hearing scheduled for 8 February, provides the basis for a finding that no useful purpose would be served by adjourning the appeal. The simple point is that he could raise at the dismissal hearing itself, a mere two days later, any ground that might exist for setting aside or varying Deputy Hennessy’s directions. No useful purpose is served by maintaining a separate appeal proceeding in these circumstances.

15 In so holding, the Appeal Panel does not express an opinion about an underlying issue on which no submission was made by either side. This is whether directions, given in accordance with s 73(6) of the ADT Act, constitute an appealable decision under s 112. If they do not, there exists a further reason for dismissing this appeal.

16 As to the costs of these proceedings, the most convenient order in all the circumstances is that they should be treated as a component of the costs of the whole proceedings, to be determined by the Tribunal at an appropriate future time.

05/10/2006 - To anonymise name of Appellant - Paragraph(s) Front Cover and paragraph 2