Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212

CITATION: Director General, Department of Infrastructure, Planning and Natural Resources v Stapleton [2003] NSWADT 212 DIVISION: General Division APPLICANT PARTIES: Director General, Department of Infrastructure, Planning and Natural Resources RESPONDENT Mark Stapleton FILE NUMBER: 033126 HEARING DATES: 20/08/2003 SUBMISSIONS CLOSED: 08/20/2003 DATE OF DECISION: 08/20/2003

BEFORE: O'Connor K - DCJ (President) APPLICATION: Late application to the Tribunal MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Environmental Planning and Assessment Act 1979 Ombudsman Act 1974 Maric v Comcare (1993) 40 FCR 244 CASES CITED: Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 Wedesweiller v Cole (1983) 47 ALR 528 APPLICANT REPRESENTATION: M Leeming, counsel RESPONDENT S Smith, counsel ORDERS: 1. Applicant's application for leave to file out of time granted.; 2. Respondent's application for costs of today's proceedings reserved.

DELIVERED EX TEMPORE REASONS FOR DECISION 1 HIS HONOUR: The Director General of the Department of Infrastructure, Planning and Natural Resources has applied to the Tribunal for it to exercise the original jurisdiction conferred on the Tribunal by s 109U of the Environment Planning and Assessment Act 1979 (the Act) to exercise the disciplinary jurisdiction that is conferred under the Act. The relevant provisions appear at 109V and following; those applicable most directly to the Tribunal being found in 109ZA. 2 There is no time prescribed in the Act for the filing of these kinds of applications in the Tribunal. Accordingly the 'default rule' as it has been called in the proceedings applies, which is in this instance Rule 14 as prescribed by the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998: ' 14 Applications for original decisions (1) For the purposes of section 42 (b) of the Act, an application to the Tribunal for an original decision must: (a) be in or to the effect of the approved form, and (b) be duly completed, and (c) be lodged at the Registry, and (d) be accompanied by the applicable fee (if any) for the application. (2) An application for an original decision need not specify the Division to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified, the Registrar may complete the application form accordingly. (3) Unless the enactment under which the application is made provides otherwise, the application must be made to the Tribunal within 28 days from the day on which the applicant became entitled under the enactment to make the application. (4) This rule does not apply to a referral to the Tribunal by the Ombudsman of a legal question for an advisory opinion under section 35C of the Ombudsman Act 1974.' 3 The position, as I understand it, is that the Director General made the decision to apply to the Tribunal on 7 March 2003. It is accepted by the Department and the counsel for Mr Stapleton, the respondent, that the 28 day period from that date would have expired on 4 April 2003. The application was filed on 15 May, so there has been a five week delay as between the time at which the matter should have been filed according to Rule 14 and the time that it was actually filed. 4 The Tribunal has the power to extend time and that is conferred by s 44 of the Administrative Decisions Tribunal Act 1997 which provides: ' 44. Late applications to Tribunal (1) Despite section 42 (b), the Tribunal may, on application in writing by an interested person seeking to make a late application, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The time for making an application for an original decision may be extended under subsection (1) although that time has expired. (3) In this section, "late application" means an application not made within the time prescribed by the rules of the Tribunal (or prescribed by or under the enactment under which the application is made).' 5 As Mr Leeming pointed out, the first step in considering whether there is to be any favourable exercise of that discretion to the applicant is set out in s 44(1), and that is that the applicant must provide a reasonable explanation for the delay in making the application. The Case Law 6 My brief survey of the cases that were helpfully brought to my attention by Mr Smith from a relatively similar environment, the environment of Commonwealth administrative law, would indicate that that requirement of a reasonable explanation has been seen by the Commonwealth Administrative Tribunal and the Federal Court on appeal from its decisions as really the first factor in a multi-factor approach to the exercise of this discretion. I take it that what has occurred is that the New South Wales parliament has really uplifted that factor into the statute just to remind us of the need to be satisfied that there is such a reasonable explanation. 7 One approach to what the factors might be seem to be, for this purpose, found in O'Connor J's decision of 1991 in Re Mulheron and Australian Telecommunications Corporation (1991) 14 AAR 42 and there is a list at 48, as was pointed out by Mr Smith, of six factors. Then, if you go to Maric v Comcare (1993) 40 FCR 244 which is the most recent in this bundle of decisions, there is a set of factors which appears from the decision as you work through it. There is also a set of factors referred to in a decision of Sheppard J in Wedesweiller v Cole (1983) 47 ALR 528 at page 534 which is referred to at page 248 of the Federal Court Report in Maric. 8 The feature, I think, of all of these cases, unless I have missed something, is that the applicant is the citizen and the respondent is the government agency, whereas we have that dynamic reversed here. The applicant is the government agency and the citizen is the respondent. There are some factors mentioned in these decisions which are what I would call government agency oriented and citizen resistant. A couple of these cases, at least, seem to involve situations where the citizen brought on the proceeding at a significantly later time than the period for bringing those proceedings permitted. 9 There are some issues in these cases about the merits of the citizen's application, and there are references to the efficiency impact that allowing the matter to proceed now would have on the operations of government. So in some ways, we are hearing in this case a counterpoint to those submissions in that the respondent here, the citizen, is really putting forward issues to do with the significance for the citizen of allowing this matter to proceed. Mr Smith has put forward some submissions as to what might be called "efficiency considerations" from the point of view of meeting the case that is now put against his client. 10 There is also some reference in these cases to the attitude that should be taken to omissions on the part of legal advisers, and there is a relatively tough statement, as Mr Smith pointed out, in Maric v Comcare at the foot of page 249 as to the courts not necessarily being prepared in all circumstances to overlook the omissions of legal advisers and to free the client of those omissions or transgressions. It may be that a similar view has some place in dealing with the conduct of public agencies who are in a much better position to obtain good advice than is the situation that might face the ordinary citizen applicant who goes to possibly a solicitor who is relatively inexperienced in the kind of litigation that the citizen wishes to pursue. So it may be that there is some principle yet to be fully developed which has to do with the relationship of omissions on the part of legal advisers in government to the exercise of discretion; as distinct from omissions on the part of legal advisers who happen to simply fall within the ordinary area of the private profession, and can possibly be less expected to appreciate the fine points of the Tribunal's jurisdiction. Explanation for Failing to File in Time 11 Now, as to the explanation in this case, the explanation is set out in an affidavit by Mr Ray of the Department. One of the factors, as I think both counsel will be aware, that is different about Maric v Comcare , and may well be part of the reason for the strong comments that O'Loughlin J makes at the foot of 249, is that it appears that in that case there was no provision of an explanation by the legal advisers to the Court. It was the client who was referring to their omissions. So it may be that that is something of a distinction between that case and this case, though ultimately these matters, as you know, are ones requiring the exercise of discretion on the facts as they appear before the present Court or Tribunal. 12 But I accept that what Mr Ray says in the affidavit does provide an explanation that is reasonable in the sense that it explains the occurrence of an oversight, that is, the legal officers in the Department looked only to their own statute to ascertain whether there were any time limits on the making of disciplinary applications. As it happened, there is a default time limit set out in the rules of the Tribunal. That was identified by the Crown Solicitor and the proceedings were then filed in a relatively timely way once that problem was observed. Prejudice 13 The question of the extent of prejudice is really the second issue that is routinely considered. It was pointed out by Mr Leeming that there was no evidence as such on this matter from the respondent, but I am prepared to give some weight to the matters mentioned by his counsel, Mr Smith. He referred to the seriousness of the potential consequences of this matter proceeding for his client, and that is undoubted. Clearly, this is a grave situation that Mr Stapleton finds himself in and there is, I think, a public interest (which may be lying outside the zone of prejudice) in having disciplinary bodies adhere strictly to procedural requirements. (We are more than familiar with this point in the Tribunal, as our possibly indulgent view on occasions of failures to adhere have been dealt with quite swiftly by the Court of Appeal when they have gone to jurisdiction. But in this instance, the issues do not appear to go to jurisdiction in the same sense.) 14 I think it is reasonable to have regard obviously to the prejudice - in the generalised sense - of the seriousness for Mr Smith's client if the matter continues to proceed, but I don't see any greater prejudice than that. 15 The argument that the respondent has suffered prejudice is not without some merit as to timeliness, but viewed narrowly, there is not a significant timeliness issue. As Mr Leeming points out, had the matter been filed on time, it would have been filed by early April. It happens to have been filed by mid-May. That difference of four or five weeks, it seems to me, is not that significant in terms of the issue of prejudice. Timeliness and Delay in the Antecedent Administrative Process 16 But there is another issue that Mr Smith identified which, maybe in an appropriate case, would need to be given some weight and that is the length of time that it has taken for the disciplinary proceedings to reach this point. It may be that one has to look more globally at issues of timeliness when considering an application for extension of time than simply at the band of time that lies between the date when the matter should have been filed versus the date when it was actually filed. There may be some merit to Mr Smith's submissions. I really have not heard enough on the point, I think, at this stage, which is to the effect that there was apparently an invalid investigation, it is said, in 2001 followed basically 12 months later by a valid investigation. It is said that that delay has had a prejudicial effect on his client's ability to put a case together to meet the allegations that are made. Apparent Merits of the Case 17 The merits of the case is another matter that is looked at. It would seem, on the face of it, that there is a real question raised by the Director General and a real issue to be addressed, as I understand the limited material that has been placed before me at this point. There seems to be no dispute that Mr Stapleton, an accredited certifier, signed an application for development consent; and that he then went on to, once the council had given the consent, to provide the required certificate as to compliance with plans, the construction certificate and then, later, the occupancy certificate that the work had been done in a compliant way. 18 Now, I understand from what Mr Smith says that he has some explanations that he wishes to provide as to how that state of affairs arose, but certainly on its face, it is a serious matter and appears to involve a serious issue of ethics and conflict of interest. So the applicant for extension of time seeks to bring forward a case which has that as a feature and, I understand, there are other allegations as well. But certainly it seems to be, on its face, a case that is at least arguable and that is a factor that seems to differentiate this application from some of the examples in the case law where the Courts and Tribunals seem to have been struggling to see what substantial merits still existed in the case that was sought to be brought forward. Public Interest 19 I think one factor that I have to have regard to and I think which ultimately must tilt the balance in favour of grant of the application is the public interest that is connected with the exercise of professional discipline. Clearly, the respondent to professional discipline proceedings has an expectation that he or she will be dealt with fairly and appropriately. But equally, the community has an expectation that standards of probity and ethics are maintained among people who are allowed entry to privileged occupations where special qualifications are required or special certifications are required by regulators. 20 I think it would be not in the public interest if an allegation of the kind that is made on this occasion was not at least aired and tested and, if there is misconduct, that the community be afforded the protection that the legislation clearly had in mind for the community in relation to such conduct. I do not want to take that point too far. Obviously, a point in time might be reached where, even though there might be a strong public interest in having the misconduct dealt with, there is a more significant countervailing interest in having disciplinary procedures conducted promptly and fairly which might override the first public interest. 21 On this occasion, I do not think that is that kind of case. Though I have noted that the respondent, Mr Stapleton, does not seem to have had very substantial opportunities to put his case in the process. I gather from the solicitor's submissions that some kind of draft report was submitted to him and he did reply to that draft report, but as best I can gather, that has been the only stage in the process before the matter has reached the Tribunal where there has been any interaction between the concerns that the disciplinary body has and his answers to those concerns. 22 It may be that they are matters that the Department will have to look at more closely in the future. 23 But as regards today, my decision on balance is that the application for extension of time should be granted and that the matter should now proceed according to the directions, unless there are other matters that people wish to raise at this stage. Application for Costs of Today's Proceedings 24 [The respondent applied for costs and the Tribunal reserved its decision. The Tribunal made the following comments for the assistance of the Tribunal if differently constituted when the final decision on today's application is made.] 25 My decision at this stage is to reserve the application, but I will make the following comments in the event that I am not involved in the remainder of the proceedings. This is because one of the difficulties the Tribunal has been encountering around this area of costs applications made at the interlocutory stage is that sometimes the Member presiding at the final hearing has not been aware, in a sense, of what has gone on in the interlocutory proceedings and maybe has taken a less serious view of things that have occurred in the interlocutory proceedings than might have been appropriate. 26 So if I am not presiding ultimately, I think I should make these observations, and they are these: that whilst I have reserved the respondent's application for costs today, I have made some observations in the course of my reasons for decision on the stay application which bear on the nature of the omission that has given rise to today's proceedings. In my view, there needs to be some differential recognised between the position that government agencies might have to face in respect of the costs sanction and that of the citizen who is often a one-time player, to use that colloquialism, within the jurisdiction; and who often, in turn, may seek legal advice from lawyers who are themselves often quite unfamiliar with what is a very remote jurisdiction from practice for most legal practitioners. It may well be that, in a sense, that was true of the government legal officers on this occasion. 27 Nevertheless, it seems to me that it has been recognised in such documents as the good practice principles that the Commonwealth government and, I think, the State government have enunciated, that government agencies, in a sense, should comport themselves in litigation at a high standard. 28 It may be that those are factors which ought to be taken into account in considering whether some adjustment should be made as to costs at the end of the day to take account of the situation that brought about these proceedings which was simply an omission on the part of the advisers to the Director General. I make no specific criticism of those advisers, but that omission has lead to today's proceedings. 29 It can be seen from those comments that I am well disposed to the application that Mr Smith has made, but I think it would be better if it was looked at the end of the proceedings when all matters as to costs can be addressed. So I will make those comments on the record, and they are there to be used in due course. So the application for costs is reserved. Orders 1. Applicant's application for leave to file out of time granted. 2. Respondent's application for costs of today's proceedings reserved.