New South Wales Court of Appeal CITATION: McGuirk v University of New South Wales & Anor [2010] NSWCA 1 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 December 2009 JUDGMENT DATE: 3 February 2010 JUDGMENT OF: Hodgson JA at 1 (1) Order that the appeal be dismissed as incompetent, unless within twenty-one days Mr McGuirk amends his proceedings pursuant to order (2). DECISION: (2) I give leave to Mr McGuirk to amend his proceedings so as to become an application for leave to appeal, and I order that any amended initiating process be filed and served within twenty-one days. (3) I order that Mr McGuirk pay the University's costs of its notice of motion, including the costs of the hearing on 14 December 2009. (4) No order as to the costs of Mr McGuirk's notice of motion. CATCHWORDS: PROCEDURE – Appeal to Court of Appeal from order of Appeal Panel of the Administrative Decisions Tribunal dismissing an appeal concerning costs – Whether appeal to Court of Appeal was against "a decision as to costs" – Whether leave to appeal necessary. LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 s 119 Supreme Court Act 1970 s 101(2)(c) CATEGORY: Procedural and other rulings 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 McGuirk v Vice-Chancellor, University of New South Wales & Anor (GD) [2007] NSWADTAP 22 McGuirk v University of New South Wales & Anor [2008] NSWADTAP 74 CASES CITED: McGuirk v University of New South Wales & Anor [2008] NSWADT 312 McGuirk v University of New South Wales [2009] NSWADTAP 43 McGuirk v University of New South Wales (No 3) [2009] NSWADTAP 47. Wheeler v Somerfield [1966] 2 QB 94 Gerard Michael McGUIRK (appellant) PARTIES: THE UNIVERSITY OF NEW SOUTH WALES (first respondent) Peter SINGLETON (second respondent) FILE NUMBER(S): CA 40376/09; 2009/00298518 COUNSEL: Appellant (in person) M IZZO (respondents) SOLICITORS: Sparke Helmore Lawyers (respondents) LOWER COURT JURISDICTION: Administrative Decisions Tribunal of New South Wales Appeal Panel LOWER COURT FILE NUMBER(S): ADT 069052 LOWER COURT JUDICIAL OFFICER: J Needham SC, Deputy President; R Handley; Deputy President; Z Antonios, Non-Judicial Member LOWER COURT DATE OF DECISION: 6 July 2009 LOWER COURT MEDIUM NEUTRAL CITATION: McGuirk v University of New South Wales [2009] NSWADTAP 43 - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40376/09 2009/00298518 HODGSON JA 3 FEBRUARY 2010 Gerard Michael McGUIRK v UNIVERSITY OF NEW SOUTH WALES and Anor Judgment 1 HODGSON JA: I am dealing with two notices of motion brought in appeal proceedings in which Mr McGuirk appeals against a decision in favour of the Vice-Chancellor, University of New South Wales (the University) and Mr Peter Singleton, who had previously acted as its counsel, made by the Appeal Panel of the Administrative Decisions Tribunal on 6 July 2009. 2 One is an application by the University (and Mr Singleton) for an order that the appeal be dismissed as incompetent. 3 The other is an application by Mr McGuirk for an order to the effect that the appeal be amended so as to become an application for leave to appeal and/or an application for judicial review of the Appeal Panel's decision. Circumstances 4 The proceeding before the Appeal Panel which gave rise to the challenged decision was an appeal brought by Mr McGuirk from a decision by O'Connor DCJ, President of the Administrative Decisions Tribunal, by which O'Connor DCJ ordered Mr McGuirk to pay the cost of a directions hearing before him on 26 June 2006 ([2006] NSWADT 271). 5 In his appeal to the Appeal Panel, Mr McGuirk challenged that decision on grounds including actual and apprehended bias. 6 On 26 April 2007 Deputy President Karpin ADCJ determined that the Appeal Panel had jurisdiction to hear that appeal ([2007] NSWADTAP 22). On 21 November 2008, Deputy President Needham SC refused an application by Mr McGuirk that she disqualify herself from hearing the appeal ([2008] NSWADTAP 74 and [2008] NSWADT 312). 7 On 6 July 2009, the Appeal Panel (Deputy President Needham, Deputy President Handley and Mr Antonios) dismissed the appeal ([2009] NSWADTAP 43); and on 5 August 2009, the Appeal Panel ordered Mr McGuirk to pay the University's cost of the appeal, and also some costs of the University's counsel Mr Singleton ([2009] NSWADTAP 47). Statutory provision 8 An appeal from the Appeal Panel to the Supreme Court is provided by s 119 of the Administrative Decisions Tribunal Act 1997, which is in the following terms: 119 Right of appeal to Supreme Court (1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings. (1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court: (a) an interlocutory decision, (b) a decision made with the consent of the parties, (c) a decision as to costs. (2) The Appeal Panel (or any of the members constituting the Appeal Panel) cannot be made a party to an appeal under this section. Rules of court made under the Supreme Court Act 1970 may make provision for the parties to any such appeal (including the designation of a respondent where the only party in the proceedings from which the appeal is brought was the appellant). (3) An appeal by a person under this section must be made: (a) within such time and in such manner as is prescribed by rules of court made under the Supreme Court Act 1970, or (b) within such further time as the Supreme Court may allow. 9 The issue raised by the University's (and Mr Singleton's) application is whether Mr McGuirk's appeal is against "a decision as to costs" within s 119(1A)(c). If I decide that it is, then it will be necessary to consider Mr McGuirk's application to amend. Decision as to costs 10 It was submitted for the University and Mr Singleton that, since the original decision sought to be set aside by Mr McGuirk's appeal is a decision as to costs, his appeal is against a decision as to costs. 11 Mr McGuirk submitted that his appeal is against the order of the Appeal Panel dismissing his appeal; and although what he seeks, in addition to setting aside that order of the Appeal Panel, is the setting aside of the original order as to costs, his appeal is not properly characterised as an appeal against a decision as to costs. Mr McGuirk referred to the case of Wheeler v Somerfield [1966] 2 QB 94. 12 In my opinion, the case of Wheeler does not directly support Mr McGuirk's position. In that case, an appeal was brought on substantive matters and also as to costs. The appeal as to the substantive matters failed. The English Court of Appeal held that leave was not required to pursue that part of the appeal that related to costs, because the appeal had included bona fide substantial grounds. 13 In the present case, there are no separate substantive matters that are the subject of the appeal. There is only the decision upholding the original order as to costs, and the original order as to costs itself, that are challenged. 14 In relation to appeals to the Court of Appeal from orders of the Court in a Division, s 101(2)(c) of the Supreme Court Act 1970 requires leave in the case of an order "as to costs only which are in the discretion of the Court". That wording does indicate that, if the Court in a Division were to dismiss an appeal from a decision of a Local Court as to costs on the ground that no error of the Local Court was shown, leave to appeal to the Court of Appeal would not be required under s 101(2)(c), because the decision appealed against did not relate to costs "in the discretion of the Court". However, in such a case, an appeal would lie as of right only if the requirement in s 101(2)(r) of involvement of $100,000 or more was satisfied. 15 Section 119 of the Administrative Decisions Tribunal Act does not have the same wording: that is, it is not worded so as to be limited explicitly to decisions as to costs that are in the discretion of the Appeal Panel. The question is whether such a limitation is implicit. Mr McGuirk relied on the terms of the second reading speech relating to s 119 to support the view that it was intended to have the same effect as s 101(2)(c) of the Supreme Court Act. In my opinion, such a limitation is not implied. The legislature could have used the wording of limitation contained in s 101(2)(c), and did not do so; and it is of some significance that there is not the alternative threshold provided by the requirement of involvement of $100,000 or more. 16 In my opinion, there should not be a narrow construction given to the words "decisions as to costs". There is some force in Mr McGuirk's submission that the decision of the Appeal Panel related to questions of bias and apprehended bias in the Tribunal, which could be of importance; but ultimately, what Mr McGuirk is challenging is orders that do no more than reject a challenge he made to an order as to costs. In those circumstances, in my opinion Mr McGuirk's appeal is an appeal against a decision as to costs. 17 Accordingly, I would dismiss his appeal as incompetent, unless I am prepared to grant leave to amend. Leave to amend 18 In my opinion, subject to one matter, it would be appropriate to grant leave to Mr McGuirk to amend his appeal proceeding so as to change it into an application for leave to appeal. 19 There is one matter that concerns me. Mr McGuirk has suggested that if an application for leave to appeal failed, he would then commence proceedings for judicial review. It seems to me that to do so may well be an abuse of process. It seems unlikely in the extreme that the Court would exercise a discretion to grant judicial review in circumstances where it was not prepared to grant leave to appeal. The issues arising in both such applications would very substantially overlap, and may indeed be substantially identical. 20 However, proceedings for judicial review would require joinder of the Tribunal the decision or decisions of which are being challenged. It might be that to require judicial review proceedings to be brought and dealt with at the same time as an application for leave to appeal would add to costs and complexity. On balance, I think the appropriate order is simply to allow Mr McGuirk to amend his appeal proceedings into an application for leave to appeal. ORDERS 21 The University's (and Mr Singleton's) application has been substantially successful, and the University and Mr Singleton did not significantly oppose Mr McGuirk's application to amend. In my opinion, it is appropriate that Mr McGuirk be ordered to pay the costs of the University's (and Mr Singleton's) notice of motion, including the costs of the hearing on 14 December 2009. There should be no order as to the costs of Mr McGuirk's notice of motion. 22 For those reasons, I make the following orders: (1) Order that the appeal be dismissed as incompetent, unless within twenty-one days Mr McGuirk amends his proceedings pursuant to order (2). (2) I give leave to Mr McGuirk to amend his proceedings so as to become an application for leave to appeal, and I order that any amended initiating process be filed and served within twenty-one days. (3) I order that Mr McGuirk pay the University's (and Mr Singleton's) costs of their notice of motion, including the costs of the hearing on 14 December 2009. (4) No order as to the costs of Mr McGuirk's notice of motion. ********** 25/02/2010 - [1] After the words "(the University)" add "and Mr Peter Singleton, who had previously acted as its counsel".[2] After the word "University" add "(and Mr Singleton)". [9] After the word "University's" add "(and Mr Singleton's)" [10] After the word "University" add "and Mr Singleton".[20] Added the word "the" after "Tribunal" and the word "of" after "decisions". [21] After the word "University's" in the first line add "(and Mr Singleton's)"; and after the word "University" in the second line add "and Mr Singleton"; and after the word "University's" in the fourth line add "(and Mr Singleton's)". [22(3)] After the word "University's" add "(and Mr Singleton's)" - Paragraph(s) [1], [2], [9], [10], [20], [21], [22(3)] 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.