CITATION: Johnston v Department of Education and Training [2007] NSWADT 117 DIVISION: General Division APPLICANT PARTIES: Phillip Johnston RESPONDENT Department of Education and Training FILE NUMBER: 063057, 063201, 063236, 063237, 063255 HEARING DATES: On the papers SUBMISSIONS CLOSED: 22 May 2007 DATE OF DECISION: 1 June 2007 BEFORE: Pearson L - Judicial Member CATCHWORDS: Representation of party MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Freedom of Information Act 1989 Interpretation Act 1987 Legal Profession Act 2004 CASES CITED: Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186 Vice Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSWADT 271 APPLICANT In person REPRESENTATION: RESPONDENT J McDonnell, solicitor ORDERS: Applications refused REASONS FOR DECISION 1 The applicant currently has five applications for review of decisions made under the Freedom of Information Act 1989 (the FOI Act) by the respondent before the Tribunal. 2 The applicant has objected to the representation of the respondent in these matters by Mr John McDonnell, Assistant Crown Solicitor, and he has requested that I make an order under s71 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). The applicant has also requested that I direct the Assistant Crown Solicitor to provide a certificate under s347 of the Legal Profession Act 2004 (the LP Act). 3 These applications have been discussed during planning meetings held in relation to the applications for review. On 6 March 2007 I directed that the parties file written submissions in relation to these two applications. Both parties agreed to have these applications determined on the papers. I am satisfied that the issues for determination in both these applications can be adequately determined in the absence of the parties: s76 ADT Act. Application for an order under s71 ADT Act 4 Section 71 of the ADT Act provides: 71 Representation of parties (1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an agent, or (c) if the party is an incapacitated person—be represented by such other person as may be appointed by the Tribunal under subsection (4). (2) Despite subsection (1), the Tribunal may order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so. (3) In making an order under subsection (2), the Tribunal is to have regard to the following matters: (a) the complexity of the matter and whether it involves a question of law, (b) whether each party has the capacity to present the party's case by oral submissions without representation, (c) the stage that the proceedings have reached, (d) the type of proceedings, (e) such other matters as the Tribunal considers relevant. (4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party. (4A) Without limiting subsections (1) and (4), the Tribunal may: (a) in the case of an external appeal made under section 67A of the Guardianship Act 1987—appoint any person the Tribunal thinks fit to represent a party to the proceedings who: (i) is a protected person within the meaning of that Act, or (ii) is a person in respect of whom a guardianship order (within the meaning of that Act) has been made or in respect of whom an application for such an order has been refused, and (b) in the case of an external appeal made under section 21A of the Protected Estates Act 1983—appoint any person the Tribunal thinks fit to represent a party to the proceedings who is a protected person within the meaning of that Act. (5) Subsection (2) does not apply to proceedings before an Appeal Panel of the Tribunal. (6) Any person appearing before the Tribunal may use the services of an interpreter unless the person can understand and speak the English language sufficiently to enable the person to understand, and to make an adequate reply to, questions that may be put to the person. (7) In this section: incapacitated person means: (a) a minor, or (b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or (c) any other person of a class prescribed by the regulations for the purposes of this paragraph. interpreter includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings. 5 When this issue was first raised in a planning meeting, the applicant's objection was to representation of the respondent by Mr McDonnell. The applicant's written submissions are put on a broader basis. First, the applicant contends that the Crown Solicitor "has no actual authority to be appearing in at least three of my five FOI cases". That submission is based on advice he has received that the NSW Crown Solicitors Office "did not have file creation sheets for matters 063236 and 063237". The applicant submits that there is a jurisdictional issue such that the appearance of the Crown Solicitor is inappropriate, and also that removal of the Crown Solicitor is in the public interest "as it will result in a considerable saving to the public purse" and expedite the matters before the Tribunal. Having noted that the Crown Solicitor's Office is representing the respondent in all of his FOI cases before the Tribunal, the applicant submits: DET's own Legal Services Directorate employs a range of various classes of legal practitioners. As a consequence of item 1 the applicant submits that it is clearly not a level playing field when as a lay applicant the applicant has to compete with the full resources of the Department of Education and Training's Legal Services Directorate combined with the full resources of the Office of the NSW Crown Solicitor's Office in matters currently before the Honourable Member. 6 In response, the respondent submits that it would not be appropriate to make an order under s71(2) that the respondent not be represented by Mr McDonnell, for two reasons: (i) The applicant "is a difficult litigant to deal with", and has complained about the conduct of most of the staff members of the respondent's Legal Services Directorate, in one case, by lodging a complaint with the Legal Services Commissioner. The Crown Solicitor has been instructed to appear in all the applicant's matters, and those matters have been allocated to the Assistant Crown Solicitor. (ii) the legal issues raised by the applicant in these proceedings are appropriate to be dealt with by solicitors. Those issues include whether a planning meeting is a preliminary conference; the two issues raised in these submissions; and the alleged actual and apprehended bias of the Judicial Member. 7 In his submissions in reply, the applicant submits that to allow the Crown Solicitor to continue to represent the respondent without restriction will inhibit the progress of the matters under review. Further, the applicant submitted that the respondent's submissions "are generally lacking in accuracy, in some parts are knowingly false as well misleading, plus they appear to be deliberately inflammatory to be a distraction from the core issues in the preliminary matters by design", and provided details in support of this submission. 8 Section 71(1)(b) reflects the common law position that a person entitled by statute to appear in person before a decision-maker is entitled to appear by agent: R v Visiting Justice at Pentridge Prison; ex parte Walker [1975] VR 883. Section 71(2) restricts that right in particular circumstances, and section 71(3) specifies the matters which the Tribunal is required to take into account before making an order under s71(2). The respondent in this matter is a Government agency. It can only "appear" in proceedings before the Tribunal by an agent. That agent could be an employee of the respondent department, or some other person contracted by the agency for that purpose. 9 I am not satisfied that s71(2) enables me to make the order sought by the applicant, for two reasons. First, s71(2) refers to "an agent of a particular class". The Macquarie Dictionary (3rd ed) defines "class" as including: 1. a number of persons, things, animals etc, regarded as forming one group through the possession of similar qualities; a kind; sort 10 Applying the ordinary meaning of the word "class", section 71(2) applies to a person who is a member of a group which can be defined by reference to particular shared or similar "qualities". Those "similar qualities" may, for example, be the possession of qualifications of a particular kind (for example, legal or medical qualifications), or experience of a particular kind. By referring to a "class", s71(2) might, in appropriate circumstances, enable the Tribunal to direct that a party not be represented by a legal practitioner. It does not extend to allowing the Tribunal to direct that a party may not be represented by a specific individual. If legal representation is appropriate, it is the party's decision which legal practitioner represents it. 11 Secondly, s71(2) refers specifically to representation "for the purpose of presentation of oral submissions" to the Tribunal. These review applications have not yet reached a hearing, and so far have been discussed in planning meetings. As noted by President O'Connor DCJ in Vice-Chancellor, University of New South Wales v Curtin and McGuirk; Curtin v Vice-Chancellor, University of New South Wales (Interlocutory Applications) [2006] NSWADT 271, a planning meeting is a preliminary procedure used by the Tribunal in its FOI and Privacy jurisdictions, akin to a case conference. The objective of the planning meeting is to seek to resolve or limit the dispute if possible. A planning meeting is not an occasion for the making of oral submissions by any of the parties to the proceedings. 12 I have had regard to extrinsic material, as permitted under s 34(1)(b)(i) of the Interpretation Act 1987. The second reading speech on the introduction of the Administrative Decisions Tribunal Bill 1997 (Legislative Assembly 29 May 1997) contains the following passage: Applicants will be entitled to be represented when appearing before the ADT. However the tribunal will be given a discretion to exclude representatives from making oral submissions at hearings, depending on such factors as the type of proceedings, the parties capacity to present their case without representation and the complexity of the matter. 13 The reference in this passage to "hearings" reinforces an interpretation that the power under s71(2) will generally only arise once a matter is at the hearing stage. The reference in s71(2) to "the whole proceedings or any part of the proceedings" would enable the Tribunal to limit a representative to oral submissions on some, or all of the issues for determination. 14 If s71(2) does confer the power to make the order sought by the applicant, I am not satisfied that such an order should be made. The factors listed in s71(3) refer both to the nature of the matter before the Tribunal, and to the capacity of the person concerned to represent themselves. In FOI matters, the onus in establishing that an agency's decision is justified is on that agency: s61 of the FOI Act. In these proceedings the issue of the Tribunal's jurisdiction, and other legal issues as identified in the respondent's submissions, have been raised. The applicant has, so far, demonstrated that he is able to present his case. The distinctive features of applications for review of decisions under the FOI Act were the subject of comment by President O'Connor DCJ in Curtin v Vice Chancellor, University of New South Wales [2005] NSWADT 186, as follows: 18 It is my view that unrepresented applicants in FOI face a relatively small disadvantage in not having legal representation given the role the Tribunal is meant to play. That is not to say the Tribunal does not have experience of cases where substantial submissions have been received from represented applicants through counsel. 15 As noted in the applicant's submissions, s73(4) of the ADT Act imposes the following obligations on the Tribunal: (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 16 I am not satisfied that I have the power under s71(2) to direct that the respondent not be represented by the Assistant Crown Solicitor, or that if I do, it is appropriate to make the order requested by the applicant. Certificate under s347 of the Legal Profession Act 17 Section 347 of the LP Act provides: 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. 18 In his written submission the applicant referred to the advice that the Crown Solicitors Office did not have file creation sheets for two of the matters; to section 6.0 of the Premiers Memorandum No 97-26 "Technical Defences" and "Claims for Public Interest Immunity"; and to the Attorney-General's Department "Code of Conduct and Ethics". The applicant relied on the Court of Appeal decision in Groth v Audet [2006] NSWCA 48 on sections 198L and 198M of the Legal Profession Act 1987. 19 The respondent submitted that Div 10 of Part 3.2 of the LP Act (which includes s347) applies only to courts, and not tribunals; and that a s347 certificate is only required where a law practice files court documentation on a "claim or defence of a claim for damages". 20 In his submissions in reply, the applicant submitted that Div 10 of Part 3.2 of the LP Act does not exclude tribunals. The applicant further relied on the Court of Appeal decision in Firth v Latham & Ors [2007] NSWCA 40. The applicant submitted that s347 certificates "are for attesting to the merits of a case", and that if the cases have merit "there should be no problem attesting to the fact and filing same with the ADT". 21 Section 347 has to be considered in context. That context is Part 3.2 Costs Disclosure and Assessment, in Chapter 3 Conduct of Legal Practice. Div 10 of Part 3.2 deals with "Costs in civil claims where no reasonable prospects of success". Section 344 states that Div 10 "extends to legal services in connection with proceedings in a court on appeal as well as a court at first instance". Section 345(1) states: (1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes 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. 22 Div 10 applies only to proceedings "on a claim or defence of a claim for damages". These matters are proceedings under s53 of the FOI Act for review of decisions made by the respondent, and those proceedings do not involve a "claim for damages". Groth v Audet [2006] NSWCA 48 and Firth v Latham [2007] NSWCA 40 involved civil claims for damages for personal injuries heard in the District Court, and are not relevant to these proceedings. Section 347 of the LP Act has no application in these proceedings. 23 In certain proceedings before the Tribunal, for example, in the Retail Leases Division, or in the General Division under the Privacy and Personal Information Protection Act 1998, a claim for damages can be made. As noted by the applicant in his submissions, the Tribunal has available on its website a form for a certificate under s347 of the LP Act, and directs that it be lodged in certain proceedings. My conclusion that these proceedings do not involve a "claim for damages" makes it unnecessary to decide whether or not the Tribunal is a "court" for the purposes of the application of Div 10 of Part 3.2 of the LP Act, and I express no opinion in that regard. 24 The applicant raised several other matters, including the basis of the Crown Solicitor's instructions, and the manner in which the respondent's representatives have conducted themselves in these proceedings. I have considered the applicant's comments. Issues as to the future conduct of these matters will need to be dealt with in accordance with the requirements of Chapter 6 of the ADT Act, in particular s73 of the ADT Act. Order Applications refused. 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.