Appeal Panel - Internal CITATION: Department of Justice and Attorney General v AY (GD) [2010] NSWADTAP 17 APPELLANT Department of Justice and Attorney General RESPONDENT AY PARTIES: APPELLANT Department of Education and Training RESPONDENT AY FILE NUMBER: 099068; 099069 HEARING DATES: 27 January 2010 SUBMISSIONS CLOSED: 27 January 2010 DATE OF DECISION: 23 March 2010 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Representation – Agent not a legal practitioner – Leave to Appear – Relevant considerations – Appeal allowed – Leave to Appear Refused – Administrative Decisions Tribunal Act 1997, s 71 – Administrative Decisions Tribunal Rules 1998, cl 20A DECISION UNDER APPEAL: AY v Attorney General's Department of NSW [2009] NSWADT 264; AY v Department of Education and Training [2009] NSWADT 265 FILE NUMBER UNDER APPEAL: 093128; 093129 DATE OF DECISION UNDER APPEAL: 10/13/2009 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Rules 1998 Privacy and Personal Information Protection Act 1998 Adam P Brown Male Fashions v Philip Morris Inc (1981) 148 CLR 170 Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 AY v Attorney General's Department [2009] NSWADT 264 Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 House v R [1936] HCA 40; (1936) 55 CLR 499 In re the Will of Gilbert (dec'd), (1946) 46 SR (NSW) 318; 63 WN (NSW) 176 LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16 CASES CITED: Mace v Murray (1955) 92 CLR 370 Mahenthirarasa v State Rail Authority (no 2) [2008] NSWCA 201 Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235 Rajski v Scitec Corporation Pty Ltd, NSWCA, 16 June 1986, unreported Shirley v Director General, Department of Education and Training [2009] NSWADT 140 Shirley v Director-General, Department of Education and Training (No. 2) [2009] NSWADT 235 Teese v State Bank of New South Wales [2002] NSWCA 219 Vice-Chancellor, University of NSW v Curtin [2006] NSWADT 271 Western Australia v Ward (1997) 76 FCR 492 Wongatha People v State of Western Australia [2002] FCA 871 APPELLANTS J McDonnell, Crown Solicitor's Office REPRESENTATION: RESPONDENT P Johnston, agent ORDERS: 1. Appeal allowed. Leave to extend to merits granted. 2. Mr Johnston's application to represent Mr AY refused. REASONS FOR DECISION 1 Following application made under s 71 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the General Division of the Tribunal has given a person who is not an Australian legal practitioner, Mr Phillip Johnston, permission to represent Mr 'AY', in respect of Mr AY's applications for review of conduct brought under the Privacy and Personal Information Protection Act 1998 (the Privacy Act): see AY v Attorney General's Department [2009] NSWADT 264 (13 October 2009). There are two applications (file nos. 099068 and 099069), one naming the Department of Justice and Attorney General (DJAG), as it is now known, as the respondent agency; and the other naming the Department of Education and Training (DET) as the respondent agency. 2 On 4 November 2009 the agencies lodged notices of appeal against the ruling. 3 As the ruling was an interlocutory one, leave is required to have an appeal proceed: see ADT Act, s 113(2A), (2B), read in conjunction with s 24A. I gave directions on 27 November 2009 for the filing of written submissions on the leave application. The agencies filed their submissions on 15 December 2009. Mr AY filed submissions on 11 January 2010. The leave hearing was held on 27 January 2010. 4 Leave to appeal was granted. The parties agreed to the substantive decision being made on the papers, as permitted by s 76 of the ADT Act. 5 The Appeal Panel has been constituted by a single presidential member for both purposes, as permitted by s 113(2B). 6 An appeal may be made, as of right, on a question of law, and may, with the leave of the Appeal Panel, be extended to the merits. The agencies set out in the notices of appeal a number of questions of law, and applied for leave to extend the appeal to the merits. 7 (In the title of these proceedings and in much of the text that follows, I have observed the practice that applies in privacy proceedings in the Tribunal of deidentifying the review applicant, and used the pseudonym allocated at the time of filing. But it will be seen that later in these reasons the review applicant's name is revealed, because of the need to refer to other proceedings relevant to this appeal where his identity was not suppressed.) Relevant Provisions 8 The provisions of the ADT Act and the Administrative Decisions Tribunal Rules 1998 (the ADT Rules) bearing on representation by non-lawyer agents follow. (1) ADT Act ' 71 Representation of parties (1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an Australian legal practitioner, or (b1) with the leave of the Tribunal given under subsection (2), be represented by an agent who is not an Australian legal practitioner, or (c) … (2) A person who is not an Australian legal practitioner may, with the consent of a party to proceedings, apply to the Tribunal for leave to represent the party as the party's agent in the proceedings or in part of the proceedings. (3) The Tribunal may: (a) grant or refuse leave on an application made under subsection (2), and (b) revoke any leave that has been granted. (3A) The rules of the Tribunal may make provision for or with respect to the following matters: (a) the circumstances in which it is, or is not, appropriate for the Tribunal to grant leave for an agent to represent a party, (b) the circumstances in which it is, or is not, appropriate for the Tribunal to revoke any such leave.' (2) ADT Rules ' 20A Granting and revocation of leave for agent to represent party (1) This rule provides for the circumstances in which it is appropriate under section 71 of the Act for the Tribunal to grant, refuse or revoke leave for an agent to represent a party in proceedings, or part of proceedings, in the Tribunal. (2) It is appropriate for the Tribunal to grant leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person has: (a) a sufficient degree of competence to provide effective representation for the party, and (b) the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings. (3) It is appropriate for the Tribunal to refuse leave to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that the person does not have the qualities referred to in subrule (2). (4) It is appropriate for the Tribunal to revoke leave granted to a person to represent a party as the party's agent in proceedings if the Tribunal is satisfied that: (a) the party no longer consents to the person representing the party as the party's agent, or (b) the person applied for leave to represent that party as the party's agent without the consent of the party, or (c) the person does not have the qualities referred to in subrule (2) to act as the party's agent, or (d) the party is, or has become, an incapacitated person within the meaning of section 71 of the Act. (5) Nothing in this rule limits the matters that the Tribunal may take into account in deciding whether it is, or is not, appropriate for the Tribunal to grant, refuse or revoke leave for a person to represent a party as the party's agent in proceedings.' 9 Section 71 in its current form commenced operation on 1 January 2009. Previously the section gave an unqualified right to a person to be represented by an agent, regardless of whether the agent was an Australian legal practitioner. When this issue was before the Tribunal below for argument, the amended s 71 had commenced but Rule 20A had yet to be made. Rule 20A took effect after the close of argument but prior to the delivery of reasons by the Tribunal, on 24 July 2009. Consent 10 There is no issue of consent. The Tribunal was satisfied that Mr AY consented to Mr Johnston. Material before Tribunal 11 The agencies objected in the Tribunal below to Mr Johnston's application on a number of grounds. They filed submissions, with evidence in support. 12 They referred to observations of the Court of Appeal in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 concerning a similar discretion given to the District Court to allow lay representation, and to the following considerations as ones seen as relevant to the exercise of such a discretion: - The interests of justice, that is, the public interest in the effective, efficient and expeditious disposal of litigation; - The protection of the client and the opponent; - The unavailability of disciplinary proceedings for misconduct by lay advocates, and the absence of the duty to the court that binds legal practitioners; - The complexity of the case; and - Whether there are genuine difficulties for an unrepresented party, including language difficulties or an emergency. 13 Their submissions referred to the purpose of the amendments to s 71 as recorded by the Second Reading Speech. They noted that the following considerations had been seen as particularly relevant: - whether the proposed agent was able to act in a professionally detached manner; - whether the proposed agent is competent to present the case; and - whether the proposed agent will present the case in a timely way. 14 As noted earlier, the submissions were made before the publication of Rule 20A. It will be seen that Rule 20A refers to similar matters. 15 On the question of professional detachment, competence and timeliness, the submissions relied on evidence as to Mr Johnston's conduct in other proceedings before the Tribunal. Two statements of evidence accompanied the written submissions dated 14 July 2009, and two were filed a few days later. 16 The main item is a statement from Daniela Hartman, lawyer, CSO. It gave a file review of various proceedings in which Mr Johnston has been involved, and in which the CSO had been the lawyer for the government party. The statement is 8 pages long with 72 paragraphs. It refers in turn to 32 annexures. The statement refers to the scale of the proceedings involving Mr Johnston and the way in which he has conducted himself, conduct depicted as obstructive and not contributing to the orderly resolution of litigation. 17 During 2009 the Equal Opportunity Division of this Tribunal (EOD) dealt with a complaint of age discrimination brought by Mr AY against DET over the handling of an application for promotion to head teacher at the North Coast Institute of TAFE. His representative in those proceedings was Mr Johnston, who is also a TAFE teacher. In preparation for the hearing, DET sought to file a statement from the convenor of the selection panel. It included an Annexure E. Mr Johnston objected on behalf of Mr AY to the tender of Annexure E. He asserted that the personal information about Mr AY contained in Annexure E had been unlawfully obtained and should be excluded. 18 The second statement on which the agencies relied was from Ms Christa Ludlow, lawyer, CSO. She gives an account of exchanges between her and Mr Johnston relating to the tender issue. These occurred on 9 and 13 March 2009. She recounts threats by Mr Johnston to lodge Privacy Act complaints against the CSO (a business unit of DJAG) and DET if the tender was persisted with, comments made about her professional competence, and threats of disciplinary complaints against her. 19 The EOD held a separate hearing on the objection to the tender. It was held on 15 May 2009. On the same day Mr AY lodged the two Privacy review applications underlying this appeal. The hearing of the age discrimination complaint was fixed for 15 June 2009. 20 At the beginning of the hearing fixed for 15 June 2009, the Tribunal published its decision on the tender objection. It held that the Privacy Act was inapplicable, and therefore no issue of contravention could arise. The Tribunal considered that the information sought to be tendered fell outside the scope of the Act, as it was excluded from the statutory meaning of 'personal information' in s 4(1), as it was 'information or an opinion about an individual's suitability for appointment or employment as a public sector official' (s 4(3)(j)). See Shirley v Director General, Department of Education and Training [2009] NSWADT 140. 21 Ms Ludlow also referred to conduct by Mr Johnston during the presentation of the case on 15 June 2009 which might be seen as unsatisfactory, reflecting on his detachment, his competence and his ability properly to conduct himself before a judicial body. 22 Two additional statements of evidence lodged on 16 July 2009 and 23 July 2009 refer to events belonging to this period. The first was made by Ms Sarah-jane Morris, lawyer, CSO. She referred to communications with her by Mr Johnston at 5.10 pm on 14 July 2009. Her account of Mr Johnston's remarks to her included a number that could reasonably be regarded as vituperative, overbearing, derogatory, casting smears on the professional competence of various lawyers at the CSO and threatening. The second is made by Mr McDonnell, lawyer, CSO. He refers to a conversation with Mr Johnston on 21 July 2009. He reports Mr Johnston as threatening disciplinary complaints against Ms Morris and making other threatening remarks. 23 In reply to this material, Mr Johnston filed on 3 August 2009 a statement headed Preliminary Submissions by Agent. The statement was 18 pages long. It responds, in an itemised way, to the contents of the submissions of Mr McDonnell and the four statements of evidence upon which he relies. There are 11 annexures, and there is included CDs of the hearings (preliminary and final) in the EOD case brought by Mr AY. Tribunal Ruling 24 The Tribunal decision is a short one, and it is convenient to set it out in full: '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 093129, where the respondent is the Department of Education and Training. 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. 4 The applicant has filed detailed submissions, and the respondent has filed affidavit evidence together with submissions. 5 The respondent essentially questions the ability of the proposed agent to act in the professionally detached manner that is required in order to represent another's interests effectively. This is but one aspect of the overall discretion, and does not exhaust all relevant considerations. The discretion is a broad one and its purpose is to empower the Tribunal to control its own processes so as to ensure a just and fair determination: whether a representative is capable of conducting the proceedings on behalf of one party in a professionally detached manner is but one relevant consideration. 6 The respondent's evidence and submissions identify a number of relevant matters. They are all of relevant concern, particularly whether the representative is likely to act in his or her own interests, rather than in the interests of the party concerned; whether the representative is inclined to act so as to abuse the process by using the proceedings for a collateral purpose; whether the representative is able to properly present the party's case by way of proper evidence and submissions; and whether the representative will or will not adhere to directions the Tribunal may give from time to time. The respondent quite properly puts these matters forward as significant arguments and, it is correct to say, they are all matters that any representative must adhere to. Any breach would clearly enable the Tribunal to refuse leave. It is also worth noting that where a representative is unable to properly negotiate with an opposing party, as where a course is adopted which has no legitimate forensic purpose, there may also be a sound basis for refusing leave. Consequently, the respondent's submissions are to a degree persuasive, and they are supported by some cogent evidence, which for present purposes is accepted. 7 However, in the present matter, and at this early stage, the Tribunal may well be assisted in the presentation of relevant evidence and confinement of issues if the proposed agent is granted leave to represent the applicant. This, of course, will depend upon how the proposed agent conducts himself and the litigation. At this stage the Tribunal is persuaded that the better course is to grant leave to the proposed agent to represent the applicant, despite the significant matters that the respondent has raised. If, as the proceedings develop, this becomes an unwise exercise of the Tribunal's discretion the grant of leave can be revisited at any time (s71(3)(b)), either by way of application or on the Tribunal's own motion. This is the better way to approach the concerns in the present matter that the respondent has properly raised as it enables the Tribunal to ensure that the matter before it is conducted properly by reference to events that occur during the course of the matter itself. 8 Accordingly, leave is granted to Mr. Johnston to represent the applicant in these proceedings.' Appeal Grounds 25 The appellants contend (grounds (a) and (b)) that the Tribunal failed to apply the proper test in that it failed to have regard to rule 20A, and failed to consider, in particular, the question of Mr Johnston's competence to provide effective representation, and his ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings. They further contend (ground (c)) that instead of having regard to rule 20A(2) the Tribunal applied the wrong test of whether it could be satisfied as to the lesser test of whether 'it may well be assisted' by such representation. 26 The next contention (ground (d)) is that the Tribunal had 'no evidence' for the 'finding of fact' that 'it may well be assisted' by such representation. Ground (e) goes to the adequacy of the Tribunal's judgment. It is contended that the Tribunal constructively refused to make, or deferred the making of, a decision as to whether Mr Johnston should be granted leave 'until it has had an opportunity to observe Mr Johnston's conduct in the proceedings'. Next, it is said that the Tribunal 'failed to take into account' Mr Johnston's conduct occurring before the proceedings (ground (f)) and 'failed to take account' of the agency's evidence as to why leave should not be granted (ground (g)). Finally there is the catch-all ground, that the Tribunal made a decision no reasonable tribunal could have come to (ground (h)). 27 I will refer briefly to the outcome of the EOD proceedings previously mentioned, as an aspect of it is relied on in Mr Johnston's submissions filed 11 January 2010. The complaint was dismissed: see Shirley v Director-General, Department of Education and Training (No. 2) [2009] NSWADT 235 (15 September 2009). Mr Shirley (i.e. 'AY') lodged an appeal. Mr Johnston applied for leave to represent Mr Shirley at the appeal, as he had done below. The agency objected. Sitting alone, I dealt with that application on 8 December 2009. Leave was granted subject to conditions. Limits were placed on the length of each party's written submissions. A timetable for the hearing of the appeal was set, allocating specific amounts of time for oral submissions. The hearing was fixed for 29 March 2010. On 3 February 2010 Mr Shirley wrote to the Registrar withdrawing the appeal. Usual Approach 28 In the usual case this Tribunal would not be inclined to interfere with the party's choice of representative. The Tribunal here started from the position that it is generally desirable and convenient for persons to have representation in proceedings. This, as I see it, is in accord with the general intent of s 71. 29 To similar effect, see Hill and Sundberg JJ in Western Australia v Ward (1997) 76 FCR 492 at 501. There the court was dealing with the Native Title Act 1997 (Commonwealth) provision relating to appearances in native title cases in the Federal Court, s 85 which provides: A party may be represented by a legal practitioner or, with the leave of the Court, another person. Discretion and Case Management 30 Appeals should not be used as a weapon to disrupt or delay finality at first instance without strong justification. There are many statements in the case law, reinforcing the need for appellate bodies not lightly to interfere with the exercise of discretion at first instance, especially those exercises of discretion that belong to the interlocutory stages of proceedings. 31 The leading statement, which bears repetition on this occasion, is that found in House v R [1936] HCA 40; (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-5: 'It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 32 See also Mace v Murray (1955) 92 CLR 370 at 378 per Dixon CJ, Fullagar, Kitto and Taylor JJ; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621 at 627 per Kitto J. In the context of interlocutory exercises of discretion, see, Adam P Brown Male Fashions v Philip Morris Inc (1981) 148 CLR 170 at 177 citing with approval the observations of Jordan CJ in In re the Will of Gilbert (dec'd), (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179. 33 The Tribunal in this case was exercising a discretion at the early stages of a proceeding. It did not close its mind to the possibility of revisiting its decision. Case management requires many exercises of discretion by the trial body. The reasons given in support of exercises of discretion of this type should not be given an unduly formal reading. Mindful of these matters, I have nonetheless reached the view in this case that the Appeal Panel should uphold the appeal and extend the appeal to the merits. Consideration 34 While it is not, in my view, fair to suggest that the Tribunal's statement that it 'may well be assisted in the presentation of relevant evidence and confinement of issues if the proposed agent is granted leave to represent the applicant' involved the adoption of an erroneous principle of law, it had a duty in the circumstances of this case to better explain its conclusion. 35 The Tribunal's statement, as noted in the appeal grounds, focussed on the way in which the Tribunal might be assisted by an agent. It did not contain any assessment of the factors personal to the agent that might influence the exercise of discretion. This was not a case where nothing was known about the agent bearing on the factors seen as relevant in the general case law, and those specifically itemised in Rule 20A. 36 The Tribunal should have dealt with the issues raised by the material as to whether Mr Johnston had a sufficient degree of competence, detachment and integrity to appear as a representative. Nor was there anything put forward by the Tribunal based on its own observations that might have supported the conclusion. 37 The material from the CSO lawyers pointed to Mr Johnston engaging in bullying and threatening communications with the CSO lawyers involved in these proceedings, in the EOD matter and in other matters. Mr Johnston's own submissions filed 3 August 2009 are replete with abusive comments on the competence of the solicitors with whom he has dealt in his various proceedings, and regularly allege that they have engaged in unprofessional conduct. Even if there was a good factual foundation for one, some or all of those allegations, his choice of language is extremely intemperate, and must, in my view, put in issue his ability to perform the role of an agent in a detached manner. 38 The Tribunal referred to this material to the following extent at para [7]: 'the [appellants'] submissions are to a degree persuasive, and they are supported by some cogent evidence, which for present purposes is accepted.' It needed, in my view, to relate the material to the considerations relevant to the exercise of the leave discretion, especially those found in Rule 20A. The Tribunal, in effect, ignored the historical evidence going to Mr Johnston's conduct. 39 In my view there was a failure by the Tribunal properly to exercise the discretion reposed in it. The Merits 40 In my view the matters to which the agencies referred (see [12] and [13] above) are all relevant to the discretion whether to grant leave to represent to a lay agent. The ultimate consideration is whether the grant of leave will promote the interests of justice, broadly understood: see generally, Western Australia v Ward at 501; Wongatha People v State of Western Australia [2002] FCA 871 per Lindgren J at [20]; Teese v State Bank of New South Wales [2002] NSWCA 219; Damjanovic v Malley at [33] ff per Stein JA. 41 Those interests include the interest of a party in having their case put effectively, the interest of the opposite party in not having a method and style of representation employed which exacerbates cost, expense and trauma to no positive end and the interest of the community as a whole in having the justice system deal with disputes in a cost efficient, timely and conclusive way. 42 The grant of leave to represent gives the agent a status in the proceedings equivalent to that of a lawyer on the record. That agent holds a conferral of authority that extends beyond the hearing room, and makes the agent the person with whom an opposite party or the opposite party's representative must deal, in the range of matters that surround the preparation for and conduct of a hearing. The agent is the person with whom any negotiations are to be conducted. Those communications and negotiations will occur away from the gaze or oversight of the tribunal or court. In this case the evidence in support of the objection went to the proposed agent's conduct in both spheres. As I see it, when granting leave to a non-lawyer agent, the Tribunal should be cognisant of the scope of authority that the grant of leave furnishes, and the importance of having some assurance that the agent will adhere to appropriate standards in direct dealings with the other side. 43 Rule 20A does not affect the breadth of the discretion, but it does highlight certain considerations, those set out in subrule (2). 44 Recently, I said in LN v Sydney South West Area Health Service (GD) [2010] NSWADTAP 16 (9 March 2010): '17 I note that the Tribunal has a broad discretion in this matter. The considerations set out in rule 20A sub-rule (2) are not exhaustive: see sub-rule (5). Prior to these amendments being made, I dealt at some length with the considerations that might be relevant to the exercise of a discretion to refuse leave for a person to be assisted by a friend. See Vice-Chancellor, University of NSW v Curtin [2006] NSWADT 271 at [42]-[60]. A number of the points made in that discussion apply, with more force, to an application for permission to have a friend appear as a representative or advocate, and therefore run the case. 18 In my view it is not likely to be in the interests of the orderly despatch of business in the Tribunal that persons who have been presently or recently involved in bringing their own cases against a respondent be permitted to represent other persons with cases against the same respondent. There is a real risk that they will bring to their role as agent the grievances which have led them to take personal action against the respondent. There is a real risk that they will use the case in which they appear as agent as a further platform for airing their grievances with the agency, rather than their 'client's' grievances. The agent may be 'using the litigant as a puppet': see Paragon Finance plc v Noueri (Practice Note) [2001] 1 WLR 235 at [56].' 45 The kind of risk to which I refer there is present in this case. As the appellants' submissions below noted Mr Johnston is himself a party on the record in numerous disputes with DET, as well as being an agent in several others where the other party is the Commissioner of Police or DET. (This Tribunal's Registry database shows 33 matters, 21 with Mr Johnston as a party, 8 with Mr AY as a party represented by Mr Johnston and 4 with Mr Johnston's mother as a party and Mr Johnston representing her. In all but one of the cases where Mr Johnston is a party, the other party is DET.) 46 In my view, there is ample material in this case to support the conclusion that the interests of justice are not likely to be advanced by the involvement of Mr Johnston in this case as an agent for Mr AY. While he contests the detail of the CSO lawyers' statements as to his conduct, those statements are furnished by legal practitioners subject to professional duties that they not mislead. In my view, those statements should, as the Tribunal below did, be treated as 'cogent' (see its reasons at [6]) and be accepted for present purposes. Those statements focussed in particular on Mr Johnston's inter-parties conduct away from the gaze of the Tribunal. In my view, this evidence was clearly relevant to the exercise of the leave discretion, and was damning. 47 This ruling only bars Mr Johnston from representing Mr AY in respect of the Privacy applications. It may be that Mr AY will not be able to obtain any other representation. He may feel that he is left without any possibility of effectively prosecuting his case. 48 This Tribunal is obliged, like a court, to 'be careful to examine what is put by a party in person to ensure that he [sic] has not, because of lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done': Rajski v Scitec Corporation Pty Ltd, NSWCA, 16 June 1986, unreported, per Mahony JA. 49 Further, this Tribunal, as I have noted in LN and in Curtin, has procedural duties under s 73 of its Act in relation to case management, which include assisting parties in understanding the case made against them and in making an effective response to that case. 50 The Privacy applications before the Tribunal in these proceedings involve a single transaction, and have a preliminary question (i.e. the effect of the exclusion from the meaning of personal information found in s 4(3)(j)), which if answered in the same way as the EOD has, could well lead to the striking out of the whole of each application. This is a question on which there is a body of case law in the Tribunal. 51 It is not uncommon in this Tribunal for applicants in merits review proceedings to appear in person. Routinely they are faced with a lawyer appearing for the agency respondent. Lawyers have duties independent of their duty to their client. Their paramount duty is to the court (or tribunal). They are obliged not to mislead, not to cast unjustifiable aspersions on any party or witness and not to withhold documents and authorities which detract from their client's case: see Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at [11] per Mason CJ. There are now professional guidelines dealing with the way in which practitioners should conduct themselves in proceedings where there is an unrepresented party: see Guidelines for barristers on dealing with self-represented litigants, NSW Bar Association, October 2001; Guidelines for solicitors dealing with self-represented parties, April 2006. 52 Finally, government agencies and their representatives are bound by the model litigant principles: see further, Attorney General's Department, Model Litigant Policy for Civil Litigation, 2008 (www.lawlink.nsw.gov.au/lawlink/lms); Mahenthirarasa v State Rail Authority (no 2) [2008] NSWCA 201 at [17] ff per Basten JA; and Director-General, Dept of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [96] per Basten JA. 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.