Administrative Decisions Tribunal New South Wales Medium Neutral Citation: AF v Roads and Maritime Services (GD) [2012] NSWADTAP 45 Hearing dates: 30 October 2012 Decision date: 09 November 2012 Before: Judge K P O'Connor, President Decision: Leave to appeal is refused. Catchwords: INTERLOCUTORY APPEAL AND CAPACITY - Effect of appointment of a litigation representative - whether affected person can appeal directly - procedure in relation to appeals relating to a decision to appoint a representative - appeal not treated as incompetent in the circumstances - discretion as to leave - Leave refused Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: AF v Roads and Maritime Services (No 2) [2012] NSWADT 210 Murray v Williams [2010] NSWSC 1243 NZ v NSW Land and Housing Corporation [2007] NSWADTAP 126 Slaveski v State of Victoria & Ors [2009] VSC 423 Slaveski v State of Victoria & Ors [2009] VSC 596 Category: Interlocutory applications Parties: AF (Appellant) Roads and Maritime Services (Respondent) Representation: Counsel M Robinson SC (Respondent) In person (Appellant) F Walmsley, King & Wood Mallesons (Respondent) File Number(s): 129035 Decision under appeal Citation: AF v Roads and Maritime Services (No 2) [2012] NSWADT 210 Date of Decision: 2012-10-16 00:00:00 Before: General Division File Number(s): 073135 and 073275 REASON FOR DECISION 1This decision deals with a purported interlocutory appeal and related interlocutory order applications lodged with the Appeal Panel by a person for whom a representative has been appointed by the Tribunal at first instance. 2Section 71 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides as relevant to this case: 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) if the party is an incapacitated person-be represented by such other person as may be appointed by the Tribunal under subsection (4). ... (4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party. ... (5) Anything done or omitted to be done by a member of the Guardian Ad Litem Panel who is appointed by the Tribunal under subsection (4) to represent a party to the proceedings who is an incapacitated person does not subject the member personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the incapacitated person. (5A) However, any such liability attaches instead to the Crown. ... (7) In this section: Guardian Ad Litem Panel means the panel constituted as the Guardian Ad Litem Panel by the Director-General of the Department of Justice and Attorney General. incapacitated person means: (a) a minor, or (b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or (c) any other person of a class prescribed by the regulations for the purposes of this paragraph. interpreter includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings. 3In this case the General Division of the Tribunal decided to exercise the above power, and has appointed a representative for the review applicant (AF): see AF v Roads and Maritime Services (No 2) [2012] NSWADT 210. (I note that as originally filed the respondent to AF's review application was her then immediate past employer, the Roads and Traffic Authority (RTA). That agency has since been abolished and its functions absorbed into the agency that is the now the named respondent.) 4The Tribunal's formal order made 16 October 2012 was: Pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 the Tribunal being satisfied that AF is an incapacitated person within the meaning of s 71(7)(b) appoints a guardian from the guardian ad litem panel to represent AF in these proceedings. 5On 19 October 2012 the Tribunal appointed Ms Linda Fisher, a member of the GAL Panel, pursuant to the order of the Tribunal, and AF was notified. 6On 23 October 2012 AF personally lodged with the Registry an appeal against the Tribunal's decision. The notice of appeal was accompanied by an application for two interlocutory orders. 7The first interlocutory order sought is a stay of the operation of the Tribunal's decision to appoint a representative pending disposal of the appeal. The power of the Appeal Panel to grant a stay of an underlying order derives from the opening proviso of s 116: 116 Appeal does not stay decision Subject to any interlocutory order made by the Appeal Panel, an appeal under this Part does not affect the operation of the decision concerned or prevent the taking of action to implement the decision. 8The second order sought is the suppression of her name and identity in connection with the appeal proceedings, pursuant to s 75 of the ADT Act. 9The Appeal Panel is constituted for this purpose by me, a presidential member sitting alone, as permitted by s 113(2B) of the ADT Act. As the appeal deals with an interlocutory issue, leave to proceed is required (s 113(2A)). If leave is not granted, then the case would continue at first instance. 10On 24 October 2012 the Registry, at my direction, advised the representative that I did not require her attendance at the interlocutory orders hearing. The Hearing 11The hearing proceeded on 30 October 2012 with AF attending in person, and Mr Robinson SC appearing for the agency. 12Mr Robinson submitted that AF lacked 'standing'. He submitted that, in light of the Tribunal's decision, she was no longer permitted to file process such as a notice of appeal or an application for interlocutory orders. He submitted that I should dismiss the proceedings on that basis. 13He referred to NZ v NSW Land and Housing Corporation [2007] NSWADTAP 126. In that case the Tribunal had appointed a representative using the power given by s 71. The appointed representative then engaged counsel to assist in resolving the dispute (a complaint brought under the Anti-Discrimination Act 1977). Settlement discussions commenced. 14The applicant, NZ, objected, and immediately applied to the Tribunal for the order appointing the representative to be revoked. The Tribunal declined to do so (25 January 2007). She lodged a notice of appeal to the Appeal Panel (13 February 2007). The representative continued to pursue settlement, was successful and formally withdrew the complaint on 15 February 2007. 15The Appeal Panel continued nonetheless to deal with the matter. It set a timetable for written submissions, and decided to determine the appeal on the papers. It issued its decision on 18 April 2007. 16The Appeal Panel treated the appeal as interlocutory. It declined to grant leave for two reasons: NZ lacked standing; in the alternative, on discretionary grounds. It did not canvass the a priori question of whether the appeal could have been lodged, proceeding, as I read it, on the assumption that a person can still lodge an appeal directly on the issue of appointment of a representative. 17The Appeal Panel did in its reasons however address the issue of 'standing', but its judgment on that issue was influenced by the fact of settlement, a circumstance not present in this case. It also gave reasons, in the alternative, founded on its discretion for refusing to grant leave to appeal. 18As to both these issues, Hennessy DP said: Issue 7 Several issues arise. The first is whether NZ has standing to lodge an appeal in circumstances where the Tribunal has appointed a "best interests" representative to act on her behalf. The second is whether, if NZ does have standing, the Appeal Panel has jurisdiction to entertain an appeal against an interlocutory decision in circumstances where the substantive matter has subsequently been withdrawn and dismissed. Finally, if the Appeal Panel does have jurisdiction, should leave be granted for the appeal to proceed. Decision 8 At the time NZ lodged the appeal, she did not have standing to do so because the appointment of Ms Ramjan as her representative was still operative. The appointment of Ms Ramjan as NZ's best interests representative was made "from the date of the order until the date on which the Tribunal or the Appeal Panel hands down its final decision." The Tribunal did not dismiss the substantive matter until 15 February 2006, two days after NZ purported to lodge an appeal. The conclusion that NZ did not have standing to lodge the appeal makes it unnecessary to consider the other two issues, but I will do so in case I am wrong and NZ did have standing to lodge the appeal. 9 While the Appeal Panel may have jurisdiction to entertain the appeal, assuming NZ has standing to bring it, there is no utility in hearing an appeal in circumstances where the underlying proceedings have been dismissed. NZ has not appealed against the decision to dismiss the substantive complaint so even if she were successful in this interlocutory appeal that would not reverse the Tribunal's decision to dismiss the complaint. There is no point hearing and determining an appeal which can have no effect on the outcome of the proceedings below. For that reason, even if the Appeal Panel has jurisdiction, leave is refused. Effect of Appointment of Representative 19'Standing' is the concept used to identify those who are entitled to take action in a court or tribunal over a perceived wrong, and is usually cast in such terms as whether the plaintiff or applicant has a sufficient interest or connection with the perceived wrong. There is no question in this case that AF had standing in the usual sense. The complaints which are the subject of her review application refer to conduct affecting her during and after her time as an employee of the RTA. The problem she faces is that the Tribunal considers that she does not have the capacity to conduct proceedings effectively on her behalf, and has appointed a representative. 20AF took the course of filing the appeal process directly. I accept Mr Robinson's submission that any process ought only have been filed by the representative. That has not occurred here. 21In future, I would expect the Registry to refuse to receive process directly from a person for whom a representative has been appointed under s 71. 22If the wishes of the represented person, reasonably construed, are that he or she wants the appointment challenged, then I would see it as appropriate for the representative to lodge an appeal going to that question (only). 23I base the latter conclusion on general principle; and on what I understand to be Supreme Court practice in relation to similar issues: see, for example, Murray v Williams [2010] NSWSC 1243. 24The general principle, as I see it, is that a person should not be deprived of access to an appeal on the question of their right to proceed on their own behalf. The proper course, however, is for the appointed person to lodge the appeal if that is the wish of the affected person, reasonably understood. In hindsight in this case, it may have been better had I asked the representative attend the appeal, with a view possibly to having a notice of appeal substituted for the one lodged directly by AF. 25I will not now abort this appeal in the circumstances as they have developed before me on this occasion. 26As it has transpired I did hear both parties on the substance of the interlocutory orders application. I think it is preferable that I simply go on and deal with the submissions, rather than proceeding by striking out the appeal and the application for interlocutory orders as incompetent and inviting the appointed representative to consider what appeal, if any, might be lodged. Discretion as to Leave 27For the following reasons, I do not grant leave for the appeal to proceed, and consequently do not need to deal with the stay application or the further application for suppression orders. 28AF lodged the underlying review application with the Tribunal on 7 December 2007, four months after she ceased employment with the RTA. The application has had a long history in the Tribunal of interlocutory events and applications (some I acknowledge flowing from the agency). 29The Tribunal at first instance has now made directions fixing a timetable for the substantive hearing, and set aside 10 hearing days. This occurred before the Tribunal had decided that AF did not have the capacity to conduct the proceedings appropriately. At the appeal hearing Mr Robinson for the agency said that his own estimate of the likely length of the proceedings if they were to be conducted by AF was closer to 15 to 20 days. The hearing period will now, I expect, be substantially reduced. 30These considerations stand in favour of allowing the matter to continue at first instance. 31On the other hand it might be said that it is better to dispose immediately of any appeal that the representative might choose to lodge on the appointment question. This would close off the one issue that might remain likely to be agitated after the Tribunal makes its final order. 32Were I minded to stay the Tribunal's decision for that purpose, I would proceed on the basis of a new notice of appeal confined to that question and lodged by the representative. 33While I do not rule out the possibility that the representative may wish to press that issue by a separate notice of appeal at some later stage, my present view is that this course has little prospect of success. 34As I read its reasons, the Tribunal proceeded in an orthodox way in dealing with the issue of AF's capacity to conduct the proceedings. The Tribunal raised the matter by its own motion (there was no application on this occasion from the agency). It gave the parties an opportunity to respond. It then proceeded on the papers. In its reasons for decision, it relied substantially on the transcript record and its own observations of AF's conduct. The process adopted is similar to that adopted by the Supreme Court of Victoria (Kyrou J) in Slaveski v State of Victoria & Ors [2009] VSC 423 (24 September 2009); Slaveski v State of Victoria & Ors [2009] VSC 596 (14 December 2009). 35The difference in the Victorian case is that Kyrou J also had the benefit of a contemporary medical assessment. He obtained a forensic psychiatrist's assessment, with the consent of the affected person. 36In the present case, Molony JM did not have a contemporary medical assessment. AF was not willing to submit to that course. She reiterated to me her unpreparedness to submit to an assessment. 37Molony JM did, however, have regard to a medical report filed four years ago by the agency seen as going to the same issue of AF's capacity to conduct the proceedings. On that earlier occasion, the Tribunal (differently constituted) rejected the agency's application for the appointment of a representative. AF protested strongly at the appeal hearing over the use of this material, which she regarded as improper and in breach of a sealing order made after it was used at that time. 38As I indicated at hearing, my preliminary view is that it is not desirable for a member revisiting the issue of capacity some years later to have regard to an old report. However, I do not think that the report played any significant role in the decision the Tribunal ultimately took. The Tribunal focussed almost entirely in its reasons on the conduct that AF exhibited to the Tribunal. 39Further, AF made statements in the course of her submissions to me which in my opinion supported the view reached by the Tribunal. For example, she asserted that there was a conspiracy between the Prime Minister and the agency in relation to her case; and she attributed the recent death of her father to actions taken by the agency. Her notice of appeal is 20 pages long, and has 39 appeal points. In addition she has filed an affidavit of 80 pages in length which includes material going to the conspiracies she alleges. This conduct all points to the Tribunal's assessment being the correct one in the circumstances. 40I note that the case has a directions listing before the member for 14 December 2012. 41The representative will need to be informed of the hearing on 14 December 2012. Further, steps may need to be taken to enable the representative to have the assistance of a legal practitioner. A representative appointed under s 71(4) has a relationship to the proceedings analogous to the tutor or litigation guardian, and, if possible, should not be called on to play the additional role of advocate or lawyer (in cases of some complexity, as here). 42I note that the order which follows does not prevent the representative initiating an appeal on the issue of revocation or any other issues now or after the Tribunal makes its final order. Order Leave to appeal is refused. 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. Decision last updated: 09 November 2012