Appeal Panel - Internal CITATION: McGuirk University of New South Wales (GD) [2006] NSWADTAP 40 APPELLANT PARTIES: Michael McGuirk RESPONDENT University of New South Wales FILE NUMBER: 069039 HEARING DATES: 11/08/2006 SUBMISSIONS CLOSED: 08/11/2006 DATE OF DECISION: 08/22/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: leave to appeal interlocutory decision MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 053164 DATE OF DECISION UNDER APPEAL: 05/09/2006 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Independent Commission Against Corruption Act 1988 Supreme Court Act 1970 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 CASES CITED: Coulter v R (1988) 164 CLR 350 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 APPELLANT In person REPRESENTATION: RESPONDENT P Singleton, counsel ORDERS: 1. Application for leave to appeal refused; 2. Appeal dismissed; 3. Application for costs against the University or Mr Singleton personally, declined; Directions: If the University wishes to make an application for costs, it should do so within 14 days of the date of this decision. Mr McGuirk should file any submissions in response within a further 14 days. The application will then be decided "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 REASONS FOR DECISION Introduction 1 Mr McGuirk has appealed against a decision of the Tribunal to refuse to issue a summons for Professor Wainwright, the former Vice Chancellor of the University of New South Wales (the University), to attend and give evidence before the Tribunal. The Tribunal proceedings relate to an application by Mr McGuirk for access to certain documents under the Freedom of Information Act 1989 (FOI Act). The decision to refuse to issue the summons is an interlocutory decision and requires the Appeal Panel to give its permission before it can proceed: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113( 2A). The rationale for this requirement is that, particularly where an interlocutory order relates to matters of practice and procedure, giving a right of appeal could lead to delays and increase costs. 2 The relevant parts of s 113 are set out below: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. (2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against an interlocutory decision of the Tribunal except by leave of the Appeal Panel. 3 Under ss 24A(1) and 113(2B) of the ADT Act, an Appeal Panel may be constituted for determining both the appeal and the issue of leave to appeal by a single presidential judicial member. Issues 4 The main issue for determination is whether the Appeal Panel should give leave for Mr McGuirk to proceed with an appeal against the Tribunal's interlocutory decision. Mr McGuirk has also applied for the Appeal Panel to make a personal costs order against the University's counsel, Mr Singleton. In addition, Mr McGuirk has alleged that the University is in contempt of the Appeal Panel and that the Appeal Panel should report that matter to the Supreme Court in accordance with s 131 of the ADT Act. Finally, Mr McGuirk says that the University has failed to exercise its functions in good faith and that the Appeal Panel should bring that matter to the attention of the responsible Minister pursuant to s 58 of the FOI Act. Background to the appeal 5 The appeal arises from proceedings before the Tribunal in which Mr McGuirk seeks access to five categories of documents from the University. The request to summons Professor Wainwright, who is now retired, related to the third category of documents. That category was a request for: Copies of all referrals by UNSW to the NSW Auditor General, the Independent Commissioner Against Corruption, and the NSW Ombudsman during 2003. 6 One of the reasons for requesting this category of documents is that Mr McGuirk maintains that if the University did not refer to the Independent Commission Against Corruption (ICAC) a report about the conduct of Professor Bruce Hall, then it was in breach of its obligations under s 11 of the Independent Commission Against Corruption Act 1988. That provision requires the principal officer of a public authority, such as the University, to report to ICAC "... any matter that the officer suspects on reasonable grounds concerns or may concern corrupt conduct." The reason Mr McGuirk gave the Tribunal for requesting a summons to be issued to Professor Wainwright was so that he could give evidence as to whether or not a document reporting Professor Hall's conduct to ICAC exists. 7 The University's response to the entirety of Mr McGuirk's freedom of information application, is set out in a statement of Ms Deborah Gibson, an administrative officer with the University, dated 29 March 2006. In summary, the University says that it needs an advance deposit from Mr McGuirk in order to process the application because the scope and complexity of the documents are such that the costs to the University in dealing with the application will far exceed the $30.00 application fee. The University told the Tribunal that it relies on Ms Gibson's evidence and does not propose to rely on any evidence of Professor Wainwright. The University acknowledged that it has the burden of establishing that its determination is justified: FOI Act, s 61. 8 The Tribunal decided at [14] that the relevant test for determining whether a summons should be issued is whether the evidence Professor Wainwright could give is necessary for disposing fairly of the proceedings. The Tribunal concluded that: On the material before me I am not satisfied that the evidence Professor Wainwright would be able to give is either relevant to the matter that is to be determined or necessary for disposing fairly of the proceedings. Legal principles in relation to leave to appeal an interlocutory decision 9 There are several analogous provisions to s 113(2A) of the ADT Act in other legislation. For example, s 101(2)(e) of the Supreme Court Act 1970 provides that: "An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order ..." The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. Similarly the leave requirement in s 113(2A) of the ADT Act is designed to restrict access to appeals before the Appeal Panel. The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: see Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 175. 10 Nevertheless, the general rule is that leave is not granted unless a substantial injustice would result if leave were refused and the decision is attended with sufficient doubt to warrant it being reconsidered by an appeal body: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9; Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364. To amount to a substantial injustice, the appeal must have some prospect of success. 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] FAFC 270 at [8]. Substantial injustice 11 If the Tribunal were to refuse leave, then Mr McGuirk's application would proceed to hearing without evidence from Professor Wainwright. If the Tribunal finds in the University's favour, then Mr McGuirk can appeal against that decision and include the Tribunal's decision to refuse to issue the summons as one of his grounds of appeal. Consequently, any "injustice" as a result of refusing leave can be remedied at a later date. 12 Prospects of success. Mr McGuirk has two main grounds of appeal. The first is that Professor Wainwright's evidence is relevant to an issue the Tribunal needs to determine, that is whether or not the documents in Category 3 exist. Secondly, he says that the Tribunal has erred because it has not complied with its obligations under s 73(5)(a) and (b) of the ADT Act to act quickly and ensure that all relevant material is disclosed. 13 I am not persuaded that Mr McGuirk's first ground of appeal has any prospect of success. The Tribunal decided that Professor Wainwright's evidence was not relevant to any issue in dispute. That is essentially a finding of fact, and therefore not a matter about which Mr McGuirk has a right of appeal. Under s 113(2) of the ADT Act, the Appeal Panel may give leave to extend the appeal to a review of the merits of the appealable decision. Even if that leave were given, the issue of the existence or otherwise of a report to ICAC about Professor Hall's conduct is not before the Tribunal. The issue before the Tribunal is whether the University has discharged its onus of establishing that its determination to request an advance deposit, before dealing with Mr McGuirk's request for five categories of documents, is the correct decision. Professor Wainwright is now retired and presumably does not have access to the University's record system. In those circumstances, it would be difficult for Mr McGuirk to establish that any evidence Professor Wainwright could give would be relevant to the issue before the Tribunal. 14 Mr McGuirk's second ground of appeal is that the Tribunal has failed to properly discharge its obligation under s 73(5)(a) and (b) of the ADT Act. Those provisions state that: The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings 15 As I understand Mr McGuirk's submission, it is that in the light of these provisions, the Tribunal was bound to issue the summons. That submission is not persuasive because it is highly unlikely that Professor Wainwright's evidence about the existence of non-existence of a report to ICAC, is relevant to the question that the Tribunal has to decide. As I have said, that question is whether the University is justified in requiring an advance deposit. Towards the end of the hearing before the Appeal Panel, Mr McGuirk added that Professor Wainwright would also be able to give relevant evidence about the credibility of Ms Gibson's evidence. In response to that submission, Mr Singleton says that if there is another basis on which Mr McGuirk says the summons should be issued, then he should re-apply to the Tribunal member dealing with this matter for reconsideration of that issue. I agree that it is not appropriate for the Appeal Panel to grant leave to appeal so it can hear the merits of what is a new basis for applying to have the summons issued. 16 Leave to appeal is not granted because no substantial injustice would result if leave is refused and there are little prospects of success on appeal. Consequently, the appeal is dismissed. Contempt 17 Mr McGuirk alleged that the University was in contempt of the Tribunal because, contrary to previous decisions of the Tribunal, the University was requesting an advance deposit after the freedom of information application had progressed beyond the stage of initial determination. I do not intend to take Mr McGuirk's allegation about contempt any further because he has not made any allegation of contempt in relation to the proceedings before the Appeal Panel. The appropriate course, if Mr McGuirk wishes to pursue this matter, is to make a formal application to the Tribunal below to refer the matter to the Supreme Court pursuant to s 131 of the ADT Act. Section 58 referral 18 Section 58 of the FOI Act allows the Tribunal to report to the responsible Minister "improper conduct" involving an officer of an agency. That section provides that: If, as a result of a review application, the Tribunal is of the opinion that an officer of an agency has failed to exercise in good faith a function conferred or imposed on the officer by or under this Act, the Tribunal may take such measures as it considers appropriate to bring the matter to the attention of the responsible Minister for the agency. 19 Mr McGuirk submitted that the Appeal Panel should make such a report to the responsible Minister. Mr McGuirk did not identify the function that a particular University officer has failed to exercise in good faith in relation to this appeal. As I have said, the University has merely defended the appeal. In those circumstances, I decline to take any action pursuant to s 58. Costs 20 Mr McGuirk applied for costs against Mr Singleton personally. He said that Mr Singleton should have agreed at the outset to the summons being issued, rather than putting all parties to the expense of contesting that matter. According to Mr McGuirk, the costs to the parties is out of all proportion to the cost of either complying with the summons or releasing the documents to him. 21 The Appeal Panel may award costs if satisfied that there are special circumstances warranting such an order: s 88(1) ADT Act. In this case, Mr McGuirk has appealed against a decision of the Tribunal to refuse to issue a summons. The University has instructed Mr Singleton to act for it to oppose that appeal. Mr Singleton appeared before the Appeal Panel representing the University and put forward his submissions in response to those of Mr McGuirk. Mr McGuirk also alluded to the conduct of the University and Mr Singleton in other proceedings involving him. Conduct in other proceedings between the same parties may be relevant to the question of whether special circumstances exist that would justify an award of costs. However, since Mr McGuirk has not identified what conduct Mr Singleton or the University has engaged in these or other proceedings that would justify a costs order in these proceedings, I decline to make any order for costs against either the University or Mr Singleton personally. Orders 1. Application for leave to appeal refused. 2. Appeal dismissed. 3. Application for costs against the University or Mr Singleton personally, declined. Directions: If the University wishes to make an application for costs, it should do so within 14 days of the date of this decision. Mr McGuirk should file any submissions in response within a further 14 days. The application will then be decided "on the papers" pursuant to s 76 of the ADT Act. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.