McGuirk v University of New South Wales & anor [2008] NSWADT 312

CITATION: McGuirk v University of New South Wales & anor [2008] NSWADT 312

DIVISION: General Division

APPLICANT Gerard Michael McGuirk PARTIES: RESPONDENT University of New South Wales & anor

FILE NUMBER: 069052

HEARING DATES: On the papers

DATE OF DECISION: 21 November 2008

BEFORE: Needham J SC - Deputy President

CATCHWORDS: Summons – leave to issue - Disqualification of Member of Appeal Panel – apprehension of bias

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Judicial Officers Act 1986

Rajski v Powell & anor (1987) 11 NSWLR 522 CASES CITED: Wentworth v Wentworth & ors (2001) 52 NSWLR 602 at 611, 639 Gallo v Dawson (No 2) (1992) 109 ALR 319

APPLICANT On the papers REPRESENTATION: RESPONDENT On the papers

ORDERS: 1. Leave to issues summonses as sought by letter of 13 November 2008 refused in each case 2. Application for disqualification of Ms Needham SC, Deputy President, refused.

REASONS FOR DECISION 1 The appellant appeals from a decision of Judge O'Connor, President, dated 10 July 2006. The decision ordered that the appellant and the second respondent pay the respondent's costs of the proceedings held on 26 June 2006. The proceedings on that date were a planning meeting in relation to Mr Curtin's FOI application against the respondent, and were conducted by Judge O'Connor. The appellant was not a party to the FOI proceedings but was attending in accordance with Mr Curtin's application for the appellant to represent him as a McKenzie friend. The appeal also raises issues relating to the McKenzie friend application which was unsuccessful. 2 Also present at the planning meeting were Mr Singleton, counsel for the respondent, and Ms Toomey, his instructing solicitor. 3 The appellant seeks to appeal against the decision of 10 July 2006 on a number of grounds and also seeks an extension of the appeal to the merits. 4 The appellant seeks to issue summonses to attend and give evidence to five persons, and in once case to produce a document, at the hearing of this appeal which is listed before me, Mr Handley, Deputy Present and Ms Antonios, Non-Judicial Member for hearing on 27 November 2008. 5 The matter has previously come before Judge Karpin and Judge Haylen for directions and Judge Karpin gave a decision on jurisdiction in which she, inter alia, declined to disqualify herself on the basis that she was at risk as to her position with the Tribunal if she found, as the appellant asked her to, that Judge O'Connor was acting fraudulently when he made the costs order and other orders in the 10 July 2006 decision. 6 I am asked to disqualify myself on the same ground. The appellant has made written submissions dated 13 November 2008 both on the disqualification issue and the Summons issue. Summonses 7 On 9 July 2008 the appellant wrote to the Registrar of the Tribunal enclosing Summonses to the following persons:- a. Ms Deborah Gibson (Head of Policy Management, UNSW); b. Ms Melinda Toomey, formerly Assistant University Solicitor at UNSW; c. Mr Peter Curtin, second respondent; d. Judge Kevin O'Connor, President, Administrative Decisions Tribunal; and e. Ms Lynne Watson, Associate to Judge O'Connor 8 The Registrar wrote to the appellant on 6 November 2008 and notified the appellant that he required the leave of the Tribunal to issue the Summonses. He was asked to provide written submissions, and it was noted in that letter that he was previously notified orally of the need for written submissions on the question of leave. 9 The written submissions were provided by letter dated 13 November 2008. 10 The basis for the Summons against Judge O'Connor is stated as being that "there is little doubt that the decision by O'Connor J to award costs ... was an attempt by him to dissuade me from continuing to pursue my attempts to expose corruption in the state of New South Wales, including in the department of the Attorney General in that State". (p 2 of the letter of 13 November 2008) and that Judge O'Connor acted "not only unlawfully ... but also corruptly" (p 3). 11 The appellant does not spend much time on the evidence to be given by the other witnesses, but says that "my position is – and I am confident that the evidence which the witnesses who are to be summonsed ... will support this – that Judge O'Connor has lied about what occurred at the planning meeting". 12 He deals specifically with Ms Toomey, who was present at the meeting, whom he says "not only lied to Judge O'Connor at the planning meeting ... " but also misled or lied to other persons. 13 In short, the summonses are sought in order for the appellant to cross-examine the decision-maker as to whether he was guilty of fraud, and to seek evidence from four other persons, including the decision-maker's associate (who acts also as an administrative assistant), the former solicitor for the respondent, an officer of the respondent (whose connection to the proceedings is not stated) and the second respondent. 14 Dealing first with Judge O'Connor, clause 5 of Schedule 3 of the Administrative Decisions Tribunal Act 1977 ("the Act") provides:- "Protection and immunities of member A member of the Tribunal has, in the performance of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court." 15 Presiding over a planning meeting is a function of a member of the Tribunal (see definition of "function" in section 3, and Schedule 2 of the Act. A Supreme Court Judge is immune from suit for acts done in the exercise of the Judge's judicial function or capacity – see Rajski v. Powell & anor (1987) 11 NSWLR 522. There is no "misconduct exception" to judicial immunity – see (2001) 52 NSWLR 602 at 611, 639. The principle of judicial immunity, while preserved in statute (see Judicial Officers Act 1986, is over 400 years old and has been affirmed by the High Court of Australia in Gallo v. Dawson (No 2) (1992) 109 ALR 319. 16 Judicial immunity in relation to proceedings extends to protection against and compellability; see section 16 of the Evidence Act 1995. While I am not bound by the rules of evidence, it seems to me that great weight should be given to the statutory provisions which preserve the common law immunities and therefore refuse leave for a summons to issue against the Judge in this matter. 17 Accordingly, a summons against Judge O'Connor in relation to his performance of his functions under the Administrative Decisions Tribunal Act for which he has immunity should not be issued. 18 I refuse leave for the proposed summons to be issued to Judge O'Connor. 19 While Ms Watson is not protected by judicial immunity, it is difficult to see why she should be summonsed to appear in relation to a matter with which she has had little direct connection and the basis of which has not been explained. Compelling her to give evidence as to the Judge's role in the proceedings is an attempt to force, indirectly, evidence which would not be admissible directly. 20 Accordingly I refuse leave for the proposed summons to be issued to Ms Watson. 21 As to Ms Gibson, no reasons for the summons proposed to be issued to her are given, and I refuse leave for the proposed summons to be issued to Ms Gibson given that she was not present at the proceedings nor has her role any direct relevance to the grounds of appeal. 22 Ms Toomey, being a legal practitioner and having appeared at the planning meeting, is able to call on the protection afforded to legal practitioners appearing before the Tribunal (see section 137(1) of the Act). That protection extends to provide practitioners with protection from civil and, with some exceptions, criminal liability (see Jamieson v R (1993) 177 CLR 574 at 581-3, 594-5). I am not satisfied that the appellant has made out any relevant exceptions in relation to Ms Toomey to any level of requisite satisfaction. I refuse leave for the proposed summons to be issued to Ms Toomey. 23 Finally, there is the question of whether a summons should issue to Mr Curtin, the second respondent. Mr Curtin is required to produce a document "Summary of Evidence and Preliminary Findings and Recommendations – Annexure B" which was filed by Mr Curtin as part of his evidence in the primary proceedings. That document is said (in the Summons) to be the subject of the dispute referred to by Judge O'Connor, and (in the letter of 13 November 2008, p 6) to be the subject of lies told about various persons at the planning meeting. 24 There is no indication of the content of the evidence which is sought otherwise to be obtained from Mr Curtin. I refuse leave for the proposed summons to be issued to give evidence to Mr Curtin. 25 No basis for the relevance of the production of the document, apart from its peripheral relevance as the subject matter of discussion at the planning meeting, has been given. Accordingly I refuse leave to issue a summons to produce that document to Mr Curtin. Disqualification 26 The application for disqualification appears to be made on the following basis:- a. I am a Deputy Presidential member of the Administrative Decisions Tribunal; b. Unlike Judge Karpin and Judge Haylen, I am not a Judge (while I am a Judicial Member of the Tribunal); c. My status as a continuing member of the Tribunal is dependent upon the graces of Judge O'Connor; and d. I would be fearful of my membership of the Tribunal "coming to an abrupt end" were I to make findings in relation to Judge O'Connor's conduct at the planning meeting. 27 In fact, Judge O'Connor does not appoint Members of the Tribunal. The Governor appoints members of the Tribunal (see section 13 of the Act) and likewise makes appointments as Acting Members (section 15) or as Divisional Heads (section 16). Judge O'Connor has no formal role in this statutory process. A member of the Tribunal may only be removed by the Governor on the basis of incapacity, incompetence or misbehaviour (Schedule 3 clause 8(2)). Again, Judge O'Connor as President of the Tribunal plays no role in this statutory process. 28 The appellant makes reference to the "Nuremburg Defence" which implies that I am following "unlawful" orders of Judge O'Connor. I have merely been appointed to hear this appeal as the presiding member of the Appeal Panel, and I intend to do so, as no proper challenge to my doing so has been put forward. 29 As there is no real danger to me in relation to my position as a Member, there is no real or apprehended bias which has been demonstrated or which would, to a reasonable person, require my withdrawal from the proceedings. 30 Accordingly, I refuse the application of the appellant that I disqualify myself.