Appeal Panel CITATION: Pascale -v- Lucas (GD) [2000] NSWADTAP 29 APPELLANT Antonio Pascale PARTIES: RESPONDENT Gary John Lucas FILE NUMBER: 009012 HEARING DATES: SUBMISSIONS CLOSED: 08/01/2000 DATE OF DECISION: 12/21/2000 Suitors' Fund Act 1951 application DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Robinson MA - Judicial Member; Mapperson K - Member CATCHWORDS: jurisdiction MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993283 DATE OF DECISION UNDER APPEAL: 12/21/2000 LEGISLATION CITED : Suitors' Fund Act 1951 Lucas v Pascale [2000] NSWADT 23 CASES CITED: Qidwai v Brown [1984] 1 NSWLR 100 Kingsford v Kavanagh, unreported, Court of Appeal, 21 November 1994 R v Pack, unreported, Court of Appeal, 14 October 1999 APPELLANT REPRESENTATION: P Huntington, barrister RESPONDENT B Levet, barrister ORDERS: Recommendation for payment from Fund pursuant to s 6C of Act. Background 1 The matter giving rise to an appeal to the Appeal Panel commenced as an application under section 329 of the Local Government Act 1993 (the Act) in the General Division of the Tribunal. The applicant below, Gary John Lucas, sought dismissal from civic office of Councillor Antonio Pascale of the Liverpool City Council. The applicant was a defeated candidate for election to the Council in the ballot held on 11 September 1999, for which the poll was declared by the returning officer on 22 September 1999. The basis upon which the applicant objected to the respondent's election related to an irregularity in the address given by Pascale at the time of his nomination. The applicant alleged that Pascale had given an address inside the municipality when in fact he resided elsewhere, at Taren Point. 2 The application was lodged with the Tribunal on 20 December 1999. Directions were given to the parties by Deputy President Hennessy on 2 February 2000. 'Preliminary' issues were raised. It was agreed that these issues be disposed on the papers, without a hearing, after exchange and filing of written submissions. 3 The respondent had sought immediate dismissal of the application for review on the ground that the proceeding was commenced after expiry of the period of 3 months permitted by s 329(2) of the Act. It was agreed that this question turn on what date was the one on which Pascale was 'elected.' Pascale contended that it was 11 September 1999 (the date of the ballot), while the applicant contended that it was 22 September 1999 (the date of the declaration of the poll). There was another 'preliminary' issue: whether the Electoral Commissioner should be joined in the proceedings, and the prior question of whether the Tribunal had power to do that. 4 A decision was delivered by Deputy President Hennessy, with written reasons, on 13 March 2000: Lucas v Pascale [2000] NSWADT 23. The orders made were that the application was not out of time; and that the Electoral Commissioner not be joined as a party. 5 On 7 April 2000 the respondent, Mr Pascale, lodged an appeal against this decision. Directions were given and an Appeal Panel constituted. Mr Pascale is the appellant and Mr Lucas now the respondent to the appeal. 6 At the directions hearing on 16 May 2000 the President raised the question of whether the decisions were appealable to an Appeal Panel. The President noted that the jurisdiction exercised under the Act involved the making of an 'original' decision by the Tribunal. The Tribunal was not engaged in the 'review of a reviewable decision.' The President noted that accordingly s 112 (1)(a) needed to be satisfied in order to found the jurisdiction of the Appeal Panel. The original decisions of the Tribunal which are appealable are those 'made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part; …'. 7 The President invited the parties, both of whom were legally represented, to draw his attention to any jurisdiction that the Appeal Panel had to continue with the matter. Counsel for Mr Pascale submitted that the Appeal Panel did have jurisdiction. 8 The President, who was sitting alone to give directions, decided that the question needed to be addressed by a fully constituted Appeal Panel and referred to issue to the Panel to decide. The President made directions for the determination of this issue, and submissions were exchanged by the parties and filed. 9 When the appeal came on for hearing before the Appeal Panel on 19 June 2000 a further difficulty was identified. The Panel noted that the proceedings below had not been conducted by a panel constituted in accordance with the Administrative Decisions Tribunal Act 1997, Schedule 2, Part 4 (General Division), cl 5A which provides: 'Applications are to be determined by 3 Division members of the General Division of the Tribunal.' 10 The question of whether the Appeal Panel had jurisdiction in respect of decisions made under s 329 of the Act was not pursued. Because the decision in issue was itself affected by invalidity, the Appeal Panel considered that the most practical course was to have the issues reconsidered by a properly constituted original panel, which for convenience could include when reconstituted second and third member of the present Appeal Panel. The Appeal Panel ordered that 'the matter be remitted to a properly constituted panel for original determination'. 11 The Appeal Panel made the following directions: 1. That all written submissions so far filed in the matter be considered by the new panel. 2. That notice be given to the Electoral Commissioner of the return of the proceedings to a properly constituted panel. 3. All parties to be given liberty to make any further submissions or to rely on their current submissions. 4. The matter be relisted on 1 August 2000 before a new panel for determination of the same preliminary questions as were before Deputy President Hennessy; the new panel may decide to proceed on the earlier papers. 5. The parties and the Electoral Commissioner may make submissions within 14 days to the President who will consult with members of today's appeal panel as to the question of whether a Suitors' Fund Act certificate should issue in relation to the costs of today's proceedings and may address alternatively the question as to whether an ex gratia payment may be appropriate. 12 The matter was relisted before a three member panel sitting in the General Division. On 1 August 2000 that panel sat and by consent of the parties, the application was dismissed. As contemplated on 19 June 2000, two members of that panel, Mr Robinson and Mr Mapperson had been members of this Appeal Panel. Relief in respect of Mr Pascale's Costs 13 This decision deals with item 5 of the Directions given on 19 June 2000. 14 In the submissions on costs, counsel for Mr Pascale said that although not expressly dealt with it seems that what has happened is that the Appeal Panel has decided to set aside Deputy President Hennessy's decision pursuant to s 81(3). Section 81 of the Tribunal Act deals with the power of the Tribunal to make any amendments to the proceedings that the Tribunal considers necessary in the interests of justice. Sub-section (3) provides that an irregularity in the conduct of proceedings does not have the effect of nullifying them. Sub-section (4) provides that the Tribunal 'may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings'. 15 The power which the Appeal Panel sought to exercise was that conferred by s 114(2), which permits the Panel when it determines an appeal on a question of law to make 'an order remitting the case to be heard and decided again … either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel.' 16 The Appeal Panel was influenced to adopt that course by two considerations: one, the problem of the invalidly constituted original proceedings; and two, despite the submissions of counsel for the appellant, Mr Pascale, the real doubt that applied to the question of whether the Appeal Panel had jurisdiction to proceed. In the view of the Appeal Panel the most practical course was to have constituted a three member panel in the General Division so that any outcome could be free from doubt as to questions of jurisdiction. Further Order 17 For clarity, though it is, we consider desirable for a further order to be made - that the decision of 13 March 2000 be set aside. A note is to be included with the published order in that case that the decision was set aside because of an invalidity as to constitution of the Division, without any consideration being given to the substance of the decision. Suitors' Fund Act issue 18 Submissions as to costs were prepared on behalf of the appellant before us, who is as noted the respondent to the original application, Mr Pascale, and provided to the General Divison panel on 1 August 2000 and also to the President, who with Mr Robinson and Mr Mapperson comprise this Appeal Panel. 19 Mr Pascale's counsel sought an indemnity from costs for events that have occurred since 16 May 2000. The costs thrown away relate to the proceedings on 16 May and 19 June 2000. Given the way the matter has proceeded, there is a case for indemnity. 20 It is clear, we consider, that the Tribunal is a 'court' for the purposes of the Suitors' Fund Act. An expansive interpretation of the term has been applied to its meaning. A Medical Disciplinary Tribunal was held to be a 'court' for the purposes of the Act in Qidwai v Brown [1984] 1 NSWLR 100, and, most relevantly, the Equal Opportunity Tribunal, now a Division of this Tribunal, was held to be a 'court' for the purposes of the Act in Australian Postal Commission v Dao (1969) 69 ALR 125. 21 Certificates can issue if the circumstances fit strictly one of those enumerated in the Act. The costs wasted here were because of an issue involving the Appeal Panel's own-motion ruling at appeal requiring the matter to be remitted for hearing. 22 This type of situation is addressed in respect of some judicial bodies by s 6 of the Act. That section does deal with appeals to the Supreme Court and, for example, appeals to the District Court, the Land and Environment Court and the Industrial Relations Commission. The situation of appeals to the Appeal Panel of the Administrative Decisions Tribunal has not been addressed. 23 The other provision that deals with circumstances somewhat analogous to those that have arisen here is s 6A. The closest analogy is found in s 6A(1) which provides for a certificate where the hearing of any civil proceeding is discontinued and a new trial ordered for a reason not attributable in any way to a default of the parties or their counsel. 24 As we consider there is a doubt as to whether the usual provisions apply to the situation that has arisen here the safer course appears to be to rely on s 6C of the Act, which provides ' Payments not otherwise authorised by this Act 6C. (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings; (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs; and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. (2) A payment under this section shall not exceed $10,000.' 25 It is appropriate for a certificate to issue under s 6C where a court's administrative process has miscarried: see, for example, Kingsford v Kavanagh, unreported, Court of Appeal, 21 November 1994 per Meagher, Handley JJA at 6; R v Pack, unreported, Court of Appeal, 14 October 1999. In this case the problem that was identified by the Appeal Panel was that the original proceedings were not validly constituted. 26 Consequently, section 6C is, we consider, the provision most applicable to this case. 27 While the application has been advanced by counsel for the appellant, Mr Pascale, the position of the respondent to the appeal, Mr Lucas, who had the benefit of the original ruling, is an even stronger one. We note that there is no application from Mr Lucas, and make no recommendation in that regard. 28 Accordingly the Panel recommends that there be a payment out of the fund pursuant to s 6C in respect of the legal costs incurred by the appellant in respect of the hearing on 16 May 2000 and 19 June 2000. 29 The Appeal Panel directs that the Registrar transmit this recommendation to the Director General of the Attorney General's Department. 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