AY v Department of Education and Training [2009] NSWADT 265

CITATION: AY v Department of Education and Training [2009] NSWADT 265

DIVISION: General Division

APPLICANT AY PARTIES: RESPONDENT Department of Education and Training

FILE NUMBER: 093129

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 18 September 2009

DATE OF DECISION: 13 October 2009

BEFORE: Wilson R - Judicial Member

CATCHWORDS: Application for leave to be represented by an agent

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

APPLICANT P Johnston (the proposed agent) REPRESENTATION: RESPONDENT J McDonnell, solicitor

ORDERS: Leave is granted to Mr Johnston to represent the applicant in the substantive proceedings

REASONS FOR DECISION

1 The applicant in these proceedings seeks to be represented by an agent pursuant to s.71 of the Tribunal's enabling legislation. The same application has been made in proceedings 093128, where the respondent is the Attorney General's Department. Following recent amendment, the section now requires that leave be obtained where the proposed agent is not a legal practitioner. The respondent opposes the grant of leave.

2 Patently, the provision requiring leave is to enhance the Tribunal's powers in relation to its ability to control its own process. Section 71(2) enables the proposed agent to make the application for leave, with the consent of the party to be represented.

3 The Tribunal's discretionary power in this regard is unfettered, although subject to principles dictating its proper exercise, such as the need to take into account relevant considerations and the like. As the proposed agent is the moving party (s.71(2)), he or she would have to establish grounds upon which the Tribunal may exercise its power by granting leave, as leave does not follow automatically upon the mere making of an application. The parties, including the proposed agent, did not particularly address this point and have focussed more on the reasons why leave should be refused. Given this approach, it is sufficient here to say that there is evidence showing that the proposed agent has in the past acted for the applicant in relation to other dealings that he has had with government agencies and that this could well suffice to enable the Tribunal to grant leave, should it wish to after consideration of all relevant matters. Consequently, attention could be conveniently directed to the reasons why leave should be refused.