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Thursday, March 12, 2009

Shades of Bleak House in NSW ADT

Some NSW Administrative Decisions Tribunal cases roll on and on, provoking memories of Jarndyce in Dickens' Bleak House where the case outlived everyone who knew anything about it.

Take this recent privacy decision by the Appeal Panel in a case by an unnamed applicant (WL) against Randwick City Council. In this decision the applicant won an application for leave to appeal against an earlier Tribunal decision.

(The more interesting legal point was that WL lost on a novel legal argument that the Administrative Decisions Tribunal was a court for the purposes of the Legal Practitioners Act. The Act requires certain documentation to be filed in court proceedings seeking damages including a certificate (Section 347) from any legal representative involved that “there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the . . defence has reasonable prospects of success.” (Reasons at [15-25]). Not required in Tribunal matters was the ruling here.)

This is the short history of the WL case which concerns an alleged breach of privacy in 2005 when a council officer took photographs of allegedly unauthorised building works in an apartment building-no individuals could be seen in the photos-and sent a notice to the strata manager and other owners about the works:

The Tribunal in 2007 decided it had no jurisdiction to conduct a review because the photographs contained no personal information about WL, the owner of the premises; the Appeal Panel upheld his appeal, ruling that if the council officer knew the name of the property owner at the time the photographs were taken the photographs would constitute a collection of personal information (have to wonder about that one) and referred the matter for rehearing; the Tribunal Member who heard the original matter and was now conducting the rehearing rejected an application to disqualify himself from the proceedings on the grounds of bias; the Appeal Panel dismissed an appeal from that decision but ordered the matter to be reheard by a differently constituted Tribunal. Then last week's Appeal Panel decision referred to above granted leave to appeal- with the rehearing of the substantive matters in the case still to come.

Then there were two Freedom of Information Appeal Panel decisions last week against Michael McGuirk, in which he sought to reopen decisions already made against him by the Panel (one involving the Ombudsman and another the University of NSW), those decisions having followed several earlier Tribunal decisions. These are just the latest in a series of cases involving myriad points about the interpretation of the Act, claims of errors of law, challenges to jurisdiction, arguments about charges, and allegations of bias on the part of Tribunal members, even collusion between the Tribunal and the Ombudsman's office. Mostly to no or little avail.

Everyone should be able to fully pursue rights at law but one shudders at the cost to taxpayers in terms of Tribunal time, and agency time and expense. Bearing in mind the Victorian estimate of $15000-$60000 for each review case, we are talking of hundreds of thousands in some of these instances. There must be a better way.


  1. The ADT has, in my humble opinion, been far too reluctant to use their admittedly limited powers to make costs orders against abusive applicants in some of their jurisdictions. They also grossly assist and indeed indulge self represented applicants in the name of doing justice, but fail to take into account a public institution can easily waste multiple hundreds of thousands defending just one meritless matter.
    I have been involved in a number of university cases over the years. I am aware of many others. It is not at all unusual for publicly funded universities to spend many hundreds of thousands defending multiple actions - usually emanating from an failed/disgruntled ex-student applicant - who has a combination of severe mental problems, far too much spare time on their hands, but with a better than average level of intellect and research skills. Often they use the latter two qualities to come up with novel but bizarre legal arguments, which everyone knows from the get go have and will not have any legal substance, but which are indulged by the ADT as so take an exceedingly long time to emerge, to be put in a vaguely legally recognisable form and then disposed of.
    These applicants are invariably self-represented. Legal Aid is knocked back as they won't waste their limited resources funding this nonsense.
    The Tribubal itself adds significantly to the delay and massive respondent costs by bending over triply to accommodate these self represented applicants.
    I agree the ADT should have as its default position the principle of no costs awarded in most of its jurisdictions, otherwise citizens have too many financial barriers placed before them to access cheap, less formal administrative justice BUT the ADT Act needs to be tightened up to address this explosion of no-hope cases, often involving multiple claims across a number of their jurisdictions and that fit the rest of the profile. Such cases do not fit neatly into established frivolous or vexatious phraseology. This needs to be broadened to enable applications - especially multiple applicatons from the one applicant - to be struck out. An amendment needs to be inserted into the ADT Act as well as the feeder Acts for the jurisdiction permitting this. The costs order requirements need loosening as well. Frankly, there are ADT cases in which I have put to clients the option of settling for a modest amounts as a straight commercial reasons where eg., the self represented applicant had no merit to their case, but only wanted eg., $10,000 but to defend the case would be upwards of $100,000. Public universities are being exploited in this way, often by the same ex student who enrols or tries to enrol sequentially at different institutions and pull the same stunt again. Unfortunately, with mentally ill applicants, what they are seeking is often so outragous eg., a million dollars, the Vice Chancellor and half a Faculty sacked etc, that settling is not possible - nor is negotiation down to something commercially viable - even when we know we will win on every point.
    It is a trend in the ADT and definately getting worse.

  2. Thnks for the comment.You have to wonder about the Attorney General's Statutory Review of the ADT Act which finally emerged in Parliament last year, years late, and saw some changes to the legislation but which didn't address this issue.On the other side of the coin, the ADT has also drawn an incredibly small space for the award of costs to an applicant in "special circumstances." The delay in access caused by ambit weak agency exemption claims in FOI cases, with concessions made during the ADT process and often total surrender in the end should be punishable in some way. The possibility of costs might be act as a small deterrent to this sort of behaviour.

  3. George,

    I appreciate the points you made in another comment today but your characterisation of some parties was a little pointed.Unfortunately the system doesn't allow me to edit a comment,simply publish or reject. I reluctantly chose the latter.Welcome your input but those last couple of sentences.....