APPEAL PANELS IN SUPER TRIBUNALS

Transcription

1 APPEAL PANELS IN SUPER TRIBUNALS JUDGE KEVIN O'CONNOR* In this paper I will discuss a feature seen in the more recently created multijurisdictional and super tribunals: the right to an internal appeal to an appeal panel. I will also discuss the qualifications to the right, the role of a first instance recall power and the relationship of the internal appeal tier to the Supreme Court. I BACKGROUND Tribunals find their origins in the growing complexity of government over the last 150 years. Questions asked almost 40 years ago in Dr Farmer's landmark book on Tribunals and Government about the role of tribunals continue to resonate today: Should they be viewed as substitutes for courts, as quasi-courts, as a branch of the administration or as convenient devices for enabling ministers and officials to exercise influence without public accountability? To what extent it is valid to make any generalization about tribunals? 1 Farmer's book focussed on the English history of tribunals. It appeared when Australia was on the path to creating its modern administrative law framework, a centrepiece being the Commonwealth Administrative Appeals Tribunal. 2 The creation of the Commonwealth AAT has informed much of the subsequent development of tribunals in Australia. There has been a trend towards consolidation of tribunals into more professionalised, multi-divisional structures of the kind first seen in the Commonwealth AAT. In Victoria in 1984 an Administrative Appeals Tribunal was created, bringing together in the one body the State planning appeals tribunal's jurisdiction and a variety of administrative appeals rights previously scattered across the court system. 3 In 1998 Victoria merged its AAT into a 'super tribunal', the Victorian Civil and Administrative Tribunal. 4 In addition, VCAT incorporated various consumer disputes and residential jurisdictions (many very high volume), regulatory and licensing jurisdictions, protective jurisdictions (guardianship) and human rights jurisdictions. The overall caseload in year one was around 74, Super tribunals with varying internal configurations of jurisdictions are now seen in Western Australia, 6 the Australian Capital Territory 7 and Queensland. 8 South Australia is examining its options, with a view to doing something similar. 9 * President, Administrative Decisions Tribunal of New South Wales. May I thank Linda Crebbin, General President, ACT Civil and Administrative Tribunal, and Justice Alan Wilson, President, Queensland Civil and Administrative Tribunal, for their helpful comments. 1 R Stevens and W Twining, Foreword in J.A. Farmer, Tribunals and Government (Weidenfeld and Nicholson, 1974). 2 Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). 3 Administrative Appeals Tribunal Act 1984 (Vic). 4 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). 5 VCAT Annual Report, , 1. 6 State Administrative Tribunal Act 2004 (WA) (SAT Act). 7 ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). 8 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

2 32 University of Queensland Law Journal 2013 In New South Wales, as early as 1973, a law reform commission report recommended the creation of an administrative appeals tribunal in that State. 10 New South Wales did not take that step until 1998, with the creation of the Administrative Decisions Tribunal of New South Wales. 11 The NSW ADT's jurisdiction, despite the suggestion given by its name, goes beyond the merits review of administrative decisions (the terminology now used to describe administrative appeals). The ADT's coverage extends to professional discipline applications (primarily legal profession), retail leases disputes, aspects of guardianship and anti-discrimination complaints. This mixing of administrative review, civil disputes, protective matters and human rights claims is typical of the State super tribunals. Administrative review can cohabit with the other classes of business in a way not seen as permitted in relation to Commonwealth arrangements because of the distinction drawn in the Commonwealth constitution between judicial power and nonjudicial power. 12 At the time the ADT was created, NSW began consolidating its consumer complaints, home building disputes and residential tenancies jurisdictions, first into two large tribunals (the Residential Tenancies Tribunal and the Fair Trading Tribunal), and then they were merged resulting in 2002 in the Consumer Trader and Tenancy Tribunal. 13 By volume VCAT is the biggest tribunal in the country, closely followed by the CTTT. 14 NSW is now moving to establish a New South Wales Civil and Administrative Tribunal (NCAT), intended commencement date 1 January It will bring the ADT and CTTT jurisdictions into the one structure, along with the Guardianship Tribunal, various medical and health professional discipline tribunals and some other small tribunals. It will have a scale of filings similar to VCAT. The major difference between the two tribunals is that VCAT has from inception included the planning and environment jurisdiction. In NSW that jurisdiction is vested in a superior court of record, the Land and Environment Court. One of the influences on Australian developments subsequent to the creation of VCAT has been the work done in the UK in relation to consolidation of tribunals. Most of the UK's major tribunals now belong to the one business structure (called the Tribunals Service until 2011, and now part of a single agency called Her Majesty's Courts and Tribunals Service). The new UK system commenced operation in Its detail is traceable to the Blair government's review of tribunals. The review formed part of the government's broader re-examination of the UK justice system. Commissioned in May 2000, Sir Andrew Leggatt, retired Law Lord, headed the review Announcement by Attorney General, the Hon John Rau MP, 26 August New South Wales Law Reform Commission, Report on the Right of Appeal from Decisions of Administrative Tribunals and Officers, Report No 16 (1973). Administrative Decisions Tribunal Act 1997 (NSW). Consumer Trader and Tenancy Tribunal Act 2002 (NSW). See, e.g., G R Kennett, 'Fault Lines in the Autochthonous Expedient: The Problem of State Tribunals' (2009) 20 PLR 152; Owen v Menzies [2012] QCA 170. VCAT had 89,470 lodgments in : see Annual Report for that year. CTTT had 64,805 lodgments: see Annual Report for Media Release, the Hon Greg Smith SC MP, Attorney General, 26 October The first Act setting up the governance structure, the Civil and Administrative Tribunal Act 2013 (No 2 of 2013) (NSW). The next Bill, due to be tabled in June 2013, will deal with jurisdiction, practice and procedure and related matters. The NCAT website reports progress: Tribunals Courts and Enforcement Act 2007 (c 15) (UK) (TCE Act)

3 Vol 32(1) Appeal Panels in Super Tribunals 33 team. The team reported in March The report is elegantly written and insightful. 17 The scale of the UK consolidation dwarfs the Australian instances, as is to be expected in a unitary system of government and in a country with a population almost three times that of Australia. The consolidated UK system covers jurisdictions characteristic of both levels of the Australian federal structure. The UK system has two tiers. Almost all primary decision-making is located in the first tier, but some is handled in the upper tier. The first tier has six divisions (called in the UK 'chambers'), some with multiple lists. The upper tier has four divisions. Three of those divisions function as internal appeal divisions, while one is a primary decision-making division. Reflecting the breadth of its responsibilities, superior court judges sit as heads of the key appeal divisions and judges head many of the first tier divisions. The tribunal can also call on the services of other High Court judges. The upper tier is declared to be a superior court of record. It can entertain applications for judicial review of first tier decisions. The entire structure is headed by a 'Senior President of Tribunals' drawn from the High Court judiciary, presently Lord Justice Sullivan. II RIGHTS OF APPEAL FROM TRIBUNAL DECISIONS In the past, if the tribunal statute gave any right of appeal it was typically outwards to a court and confined to questions of law. This approach sought to reinforce the usual policy intent that the tribunal be let alone in relation to its fact finding processes and exercises of discretion. Appeal courts generally respected the policy intent, and exercised restraint in defining the point at which an error in the fact finding process or the exercise of discretion amounted to legal error. Where there was no statutory right of appeal, the superior court of record exercised hegemony over gross derelictions from the boundaries set by law through judicial review. 18 In recent times there has been a movement towards giving parties to proceedings in multi-jurisdictional and super tribunals a right of internal appeal. The two-tier tribunal model now exists. The ADT, which I head, has had this feature since its inception in The Leggatt report commended inclusion of a similar facility in the integrated UK system, and that recommendation, as already noted, has been adopted. (In the course of his review, Sir Andrew Leggatt visited Australia and observed an ADT appeal hearing.) Two of the three more recently created Australian super tribunals, the ACT Civil and Administrative Tribunal and the Queensland Civil and Administrative Tribunal, have the same feature Tribunals for Users - One System, One Service, Report of the Review of Tribunals by Sir Andrew Leggatt, March 2001 (HMSO, London) (Leggatt Report). For a historical and constitutional perspective, see S.A. de Smith, Judicial Review of Administrative Action (Stevens, 3rd ed, 1973), Appendix 1: The Prerogative Writs: Historical Origins, 507 ff. As de Smith noted at 27 in relation to court review of administrative findings of fact, 'In Britain, judicial self restraint in these matters is based on grounds of policy as well as practical considerations. The courts regard their primary role in administrative law as the maintenance of standards of legality rather than ensuring administrative bodies get their facts right.' ADT Act ss ACAT Act Part 8; QCAT Act Part 8.

4 34 University of Queensland Law Journal 2013 WASAT is the exception. Like the Commonwealth AAT and VCAT, there is a direct right of appeal from a first instance decision to a superior court confined to a 'question of law'. 21 III THE VALUE OF AN INTERNAL APPEAL TIER The Leggatt report's observation in 2001 on the UK situation could have applied equally to the Australian situation: There is a confusing variety of routes of appeal from tribunal decisions. The system has rightly been described as hotch-potch. While it is important that there should be effective rights of appeal, in some tribunals there are too many stages, leading to long delays in reaching finality. There should be a right of appeal on a point of law, by permission, on the generic ground that the decision of the tribunal was unlawful. 22 In 2009, then VCAT President, Justice Kevin Bell presented his 'Ten Year Review of VCAT'. One of his key concerns was the absence of an internal appeal tier in the VCAT structure. He made the case for an internal appeal primarily on the ground of accessibility. He said: The current system is asymmetrical. The procedure for making applications at first instance in the tribunal is accessible and affordable, legal representation is restricted or unnecessary and an order for costs is the exception not the rule. The appeal system is not as accessible and affordable, legal representation is thought to be necessary in most cases, and costs usually follow the event. 23 He developed the case in relation to accessibility, especially for unrepresented litigants. He also noted that an internal appeal was much more manageable in cost and procedural terms for institutional parties (for example, government agencies) as compared to a court appeal. He highlighted the value to the quality of decision-making across the tribunal in having an internal appeal tier. He said: As justice institutions, tribunals have a strong interest in the consistency, predictability and quality of their decisions. Without ever interfering with the decision-making by their members, they need machinery for addressing these issues. Appeals are an important part of that machinery, as the structure of tribunals in comparable jurisdictions reveal. 24 He noted finally that an appeal tier would build a 'bank of jurisprudence'. The appeal tier could promote harmonised approaches to questions of practice and procedure common to the tribunal as a whole, and provide guidance in relation to important issues of law for particular jurisdictions of the tribunal, again with an eye to promoting an approach that is harmonious with approaches to analogous issues in other jurisdictions. I strongly agree with these views, and I believe that the ADT's experience bears out each of the points made by Justice Bell. At the mundane level, the ADT's Appeal Panel has been able to sort out in a low key way simple mistakes or errors made at first SAT Act s 105; AAT Act s 44; VCAT Act s 148. Andrew Leggart, above n 17, 9. See further VCAT President's Review, One VCAT (November 2009), 57. Ibid 58.

5 Vol 32(1) Appeal Panels in Super Tribunals 35 instance, for example in the drafting of orders or their terms, or in overlooking a relevant provision or a leading authority. The possibility of oversights of this kind are, arguably, greater in a tribunal environment where there are often no legal practitioners representing the parties. Were there no right of internal appeal, problems of this (small) dimension would often go unaddressed, leaving a party with an unfair outcome and undermining confidence in the Tribunal. More importantly and in line with Justice Bell's point about quality and predictability, the Appeal Panel has issued a large number of considered rulings on important issues of law and practice. Members at first instance have followed and applied those rulings. In combination, the relatively small body of Court of Appeal rulings and the larger body of Appeal Panel rulings has enabled the ADT to operate at first instance with a large palette of guidance. 25 IV SCOPE OF INTERNAL APPEAL RIGHT NSW: The ADT Act confers a right of internal appeal in relation to any first instance decision in the merits review jurisdiction. The scope of the appeal is governed by s 113. For matters arising in the original jurisdiction (e.g. retail leases, equal opportunity) the right must be conferred by the enabling statute. While this is usually done, there is no conferral in relation to professional discipline proceedings (a policy with which I agree), and some other small classes of proceedings. The original jurisdiction statutes that confer an appeal right usually adopt s 113. As relevant, it provides: 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal under this Part: (a) May be made on any question of law and, (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. In the period the Appeal Panel adopted the view that, normally, an appellant needed to identify a question of law involving an error before consideration 25 In our special, 10 th anniversary annual report (for the year ended 30 June 2008) we provided detailed statistics in relation to the business of the ADT, the number of appeals to the Appeal Panel and Supreme Court activity affecting decisions of the ADT whether at Appeal Panel level or first instance. - First instance applications filed and completed, Appeals filed and completed, internal 575; external Supreme Court activity, covering orthodox appeals, referrals of questions of law, appeals from the Legal Services Division: lodged and completed, 81 with 33 allowed in whole or in part. In addition, there were six answers to references of questions of law. Making allowances for the small parcel of matters that are not appealable to the Appeal Panel, about 6% of original filings find their way to the Appeal Panel, and of those about 14% go on to the Supreme Court, with about 40% of those resulting in a variation or reversal of the prior order (i.e. 0. 4% of intake, over ten years, 33 compared to 7200, the last figure discounted down from 7464 to allow for the non-appealable first instance decisions).

6 36 University of Queensland Law Journal 2013 would be given to extending the appeal to the merits. This approach focussed on the use of the word 'and' rather than 'or' between paragraphs (a) and (b) in sub-section (2). The Court of Appeal ruled that the provisions did not impose any pre-condition. It stated that the word extend in s 113(2)(b) refers back to s 113(1), and the Appeal Panel may move to consider extending an appeal to the merits regardless of whether a question of law is raised, or an error demonstrated. 26 Indeed, before the decision in Lloyd, Appeal Panels had, sometimes, extended to the merits without first finding a material error of law, but that was unusual. The most typical instance of an extension of that kind was where there was fresh evidence or other new material that might warrant a reconsideration of the decision below. Now the usual Appeal Panel practice is to ask parties first to deal with any questions of law, so that the Appeal Panel may take into account the strength or otherwise of that case before considering the application to extend to the merits. A typical statement of the Appeal Panel s approach is the following: While the Appeal Panel s discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand. 27 In 2003 the authority of the ADT Appeal Panel was widened to allow it to consider 'external appeals', i.e. appeals from tribunals and other bodies external to the ADT. The trigger was a Parliamentary Committee recommendation, adopted by the government, calling for a right of appeal more accessible than the existing right of appeal to the Supreme Court in respect of decisions made by the Guardianship Tribunal and in relation to similar decisions made in special circumstances by Magistrates and the Mental Health Review Tribunal. The right of appeal adopted different language from that seen in s 113(2). Section 118B provided: (1) An external appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Appeal Panel hearing the appeal, on any other ground The external appeal facility has not been extended to any other areas. About 20 out of the 100 appeals that reach the Appeal Panel each year are external appeals. This facility has worked, in the sense that the number of appeals is greater than was seen when the appeal right was confined to the Supreme Court. (That Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; 65 NSWLR 245 at [60]-[64] per Tobias JA; Spigelman CJ agreeing at [14]. Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17. It may be that the last sentence is too strictly expressed in light of the ruling in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (Schmidt AJ) (dealing with leave to file in the Tribunal an anti-discrimination complaint rejected by the President of the Anti-Discrimination Board). There is a danger that it may be seen as a fixed rule fettering a broad discretion. Nonetheless the basic principle of constraint reflected in the approach in Hinton is clear, I think, and not seriously doubted.

7 Vol 32(1) Appeal Panels in Super Tribunals 37 appeal right remains and is sometimes used.) The issue most frequently raised has been denial of procedural fairness. 28 ACT: The ACT Civil and Administrative Tribunal has an appeal tier. 29 The Tribunal has a general president and a separate appeal president. Under s 79(3) 'a party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.' It will be seen that this is a broad appeal right. It goes further than the ADT appeal provisions in that the appellant does not need leave to raise an issue that goes to the merits but is not a question of law. The breadth of the ACT right does not appear to have affected appeal rates in that Tribunal in any significant way. The ACAT appeal rates are very low. Its annual report for shows 52 appeals received as compared to an underlying case load of almost 8, While the ACT appeal right is broad on its face, the appeal tribunal's options as to how it conducts its hearing have raised some issues. The appeal tribunal may choose either to deal with the appeal as a 'new application' or as a 'review of all or part of the original decision on the application'. In a recent case ACAT ruled that where the appeal tribunal confined itself (as I would expect would be the usual practice) to a review function then it may not re-make a decision founded on discretion unless it is clearly wrong. 31 Queensland: The wide internal appeal right in the ACT contrasts with the position under the QCAT Act. The QCAT Act's provisions are relatively complex. 32 But the core propositions for present purposes are these - a party to proceedings may appeal to the appeal tribunal 33 and the appeal may only be made 'on a question of fact, or a question of mixed law and fact if the party has obtained the appeal tribunal's leave to appeal'. 34 In the QCAT Act the term 'question of law' is not expressly used, but it may be inferred from the language expressly used that what remains untouched by the leave requirement is a pure question of law. A party can appeal a pure question of law without leave, as at the ADT. Then the ADT Act simply speaks of extension by leave to the 'merits' while the QCAT Act introduces the second and third elements of the traditional distinctions In considering whether to grant leave to allow other grounds to be canvassed in external appeals, Appeal Panels have often endorsed the following observations of Young J in K v K [2000] NSWSC 1052, at [15] it would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. ACAT Act s 79. ACT Justice and Community Safety Directorate, Annual Report pp 280 ff. Law Society of the ACT & Treasury Directorate and NRMA Insurance (Appeal) [2013] ACAT 36 (Spender PM) at [19]-[24]. QCAT Act ss 142 ff. QCAT Act s 142(1). QCAT Act s 142(3).

8 38 University of Queensland Law Journal 2013 V EXCLUSIONS, FILTERS AND CONTROLS AFFECTING INTERNAL APPEAL RIGHT The NSW ADT, though diverse in its jurisdictions and in that way like the super tribunals mentioned, is not a high volume tribunal. In the two year period, July 2010-June 2012, there have been 104 appeals (internal and external) compared to a first instance intake of 1820, i.e. an appeal rate of 6%. This is a decline from a rate of about 8% seen in earlier years. Were that ratio extrapolated to the filing intake of super tribunals the internal appeal rate would run in the thousands and be unmanageable. Consequently it is not surprising to see that super tribunal laws give careful attention to exclusions from the right of appeal, and other filters and controls. In the case of the ADT the Act originally gave a right of appeal in relation to any 'decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings'. This formulation opened up the possibility of challenges to decisions made on the way to a final order, ranging from rulings on adjournment applications and rulings on summonses to summary dismissals and rulings on jurisdiction. We moved to have interlocutory appeals restrained. Now appeals in relation to a number of decision types can only proceed with leave. The ADT Act as amended has a catalogue of decisions types treated as interlocutory and for which leave is required. Further they need not go to a full panel and may be disposed of by a presidential member sitting alone. This sitting arrangement is also allowed for appeals relating to costs and jurisdiction (they are not subject to a leave requirement). 35 The Queensland Act imposes a leave requirement on certain classes of decisions - decisions relating to minor civil disputes (main categories, claims under $25,000 and tenancy matters), decisions that are not final decisions in the proceedings and costs orders. 36 These are important exclusions at the practical level. Minor civil disputes is the main QCAT business category (61% of its annual intake of approximately 28,000 matters). 37 As I understand it, it is rare for an appeal to be allowed to proceed in relation to a minor civil dispute. So if that category of business is removed from the base line calculation, the ratio of QCAT appeals is not that dissimilar to the ADT's experience. It sits at about 4%-5% (for the figure is 460 appeals versus a balance of approximately 11, ). The ACAT approach is to leave the appeal right largely unfettered. The appeal president is given power to dismiss an appeal summarily if the subject matter is 'substantively similar' to other appeals rejected by the tribunal and the president is satisfied, after giving the appellant an opportunity to respond, that it is in the public interest for the tribunal not to consider the appeal. Such a dismissal does not foreclose the appellant's right to appeal to the Supreme Court. 39 In the UK the 'right of appeal' from a first tier tribunal decision to the upper tier is confined to a 'point of law', does not extend to 'excluded' decisions and is subject to permission. Permission, interestingly, can be given by the first tier tribunal not just the upper tribunal. The categories of exclusion appear to be quite narrow ADT Act s 24A. QCAT Act s 142(3). QCAT, Annual Report and Our Workload and Outcomes (2 October 2012) < Ibid. ACAT Act s 80(3). TCE Act s 11.

9 Vol 32(1) Appeal Panels in Super Tribunals 39 So the UK law adopted a narrower approach than that commended by the Leggatt review in the extract set out earlier. If my understanding is correct, then the main filter in the UK model is the 'permission' (or leave) requirement. VI WAYS OF AVOIDING THE NEED FOR AN INTERNAL APPEAL A 'slip' rule is a typical feature of tribunal statutes. It allows decision makers to fix up minor errors or mistakes in the text of decisions. Recalling Decision: Sometimes the problem is more fundamental. For example, a final order may be entered on the assumption that a party has received a proper notice of hearing. Another possibility is that the terms of an order are badly expressed, or do not reflect the internal logic of the decision. At the ADT we have had both of these problems. The ADT Act was amended in 2008 to allow the tribunal to reinstate a matter where an applicant gives a reasonable explanation for non appearance (see now s 73(5)(h)). This change dealt with one of the difficulties. To deal with a problem of this kind, in the period the ADT relied on the High Court's decision in Bhardwaj. 41 It provided some welcome liberation from the problem of not being able to recall decisions to deal with obvious unfairness. In that instance a party had applied in writing for an adjournment due to illness on the afternoon before the hearing. The letter was not drawn to the member's attention, and the tribunal proceeded to make a final order in the absence of the party. When drawn to its attention two days' later the tribunal proceeded to recall the matter, accepted the party's explanation for non-attendance and reheard the case, making a different order. The Minister appealed. The High Court concluded that because of the patent denial of procedural fairness no decision had, in law, been made on the first occasion, therefore the tribunal's authority to decide was not spent, and the decision could be recalled and remade. The court was satisfied that its approach did not conflict with the statutory scheme. QCAT has the traditional slip rule, but its Act goes on to allow it to decide on the papers whether a matter ought be reopened on a 'reopening ground'. 42 There are two 'reopening grounds': one, failure to appear with a 'reasonable excuse' for not attending, and, more significantly, the possibility that a party would suffer a 'substantial injustice' if the proceeding were not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided. It can be seen that the second ground, in particular, deals with a situation that could otherwise be advanced as an appeal ground. The latest QCAT annual report shows 15 instances of the use of this power. 43 Similarly QCAT has a useful power to 'renew' a final decision. 44 An application to renew may be made on two grounds - that 'it is not possible for the tribunal's final decision to be complied with' or 'there are problems with interpreting, implementing or enforcing the tribunal's decision in a proceeding'. We have experienced both these issues at the ADT. While the parties are heard at hearing on the orders they seek if successful, it is not usual practice at the ADT or, I Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002). QCAT Act ss 136 ff. QCAT, above n 37. QCAT Act ss 133 ff.

10 40 University of Queensland Law Journal 2013 expect, in tribunals generally, to have the parties reconvene to receive judgments that are reserved. Nor do we engage in the court practice of asking the parties to draft minutes of order giving effect to the terms of the decision. A 'renewal' provision of this kind offers a simple and quick way for a member to deal with an objection to the practicality of an order or errors of calculation and the like that might affect the accuracy of the final order. The UK law has a broad provision allowing both tiers of the tribunal to 'review' a decision made by it on a matter in a case save in the case of the category of decisions excluded from appeal. 45 The tribunal may use the power to correct accidental errors in the decision or in the record of the decision (basically the 'slip' rule), 'amend reasons given for a decision' or 'set the decision aside'. If it sets the decision aside it may 're-decide' the matter or, if it is a first tier tribunal, refer it to the upper tribunal. The Act provides for the Tribunal Procedure Rules to regulate applications for review of this kind. I have not investigated the detail of those Rules. The power to amend reasons is another useful tool, especially in relation to sensitivities to do with privacy and identity theft. The internet age means that published reasons for decision have an exposure and searchability not seen with published decisions in the age of paper and selective general publication via official law report series. Presiding members have different habits of mind in relation to the level of detail given in decisions and the extent of reference to personal particulars. The ADT has sometimes had strong representations from persons named in published reasons for decision over the degree of exposure of personal matters, citing, for instance, privacy concerns or identity theft concerns. The named person may have fears about the effect of publicity on attempts at rehabilitation and obtaining employment where employers do internet searches as part of the screening process. While the content in issue may have had some general relevance to the findings made by the tribunal, we have on occasions acceded to the concerns expressed. We have acted administratively without a clear power, and a provision of the kind seen in the UK law would help. There have been some very compelling pleas, especially in relation to the personal circumstances of witnesses and children. The ACAT Act deals with these problems in several other ways. It has the traditional slip rule. 46 In its enforcement of orders scheme, it allows the magistrate's court to send back a 'faulty order' for correction if it considers it not enforceable in its present form for the tribunal to fix. 47 There are also powers to amend or set aside an order made after hearing an application in the absence of a party, to correct an error in relation to an amount or name or address of a party, or when 'extraordinary circumstances make it appropriate to amend or set aside an order'. 48 There has been little exploration by ACAT of circumstances that may be considered to be 'extraordinary' in case law to date. Further, the appeal scheme allows the appeal president to constitute a tribunal to correct an order on the request of the general president. 43 The general president is, among other things, responsible for ensuring that decisions are made according to law TCE Act s ACAT Act s ACAT Act ss ACAT Act s 56(c)(iii). 49 ACAT Act s 105(1)(a)

11 Vol 32(1) Appeal Panels in Super Tribunals 41 I understand that the 'correction tribunal' power has been used on two occasions when the general president was concerned that an original tribunal had made an order in the absence of a relevant power and no party had instigated (or perhaps was able to instigate) an appeal. The two cases involved mental health and guardianship orders. VII APPEAL TIER OF THE PROPOSED NCAT As I write, the principal NCAT bill is being prepared. It will deal with issues of jurisdiction, practice and procedure and appeals. My preference is that the internal appeal right not be bifurcated into questions of law and other questions in the way seen in the present ADT Act or the QCAT legislation. I am inclined to the approach seen in the ACAT Act. The principle could simply be - a party may, with leave, appeal on any ground. The statute could possibly have a non-exhaustive list of factors relevant to the exercise of the leave discretion, such as: whether there is raised an arguable and material error of law, whether if successful a materially different order would result, the availability of fresh evidence, findings of fact based on no probative evidence, whether an appeal is justified given the value of the claim, the likelihood of success of the appeal, the interests of justice, and the like. The leave discretion would be actively administered in a way that might allow some grounds to proceed and others to be disallowed. My preference draws on the ADT's experience of the way parties have presented their notices of appeal and their appeal submissions. Our notice of appeal form requires the appellant to identify 'questions of law' and then separately asks the appellant to give reasons as to why leave should be granted to extend the appeal to the merits. We often see, and especially in the case of many litigants in person, boiler plate recitations of 'questions of law' sometimes drawn from the examples given on our web site. Others dress up every adverse element of a decision as an alleged question of law. The application for leave to extend to the merits then repeats many of the same points without trying to embed them in a 'question of law'. There is no bright line understanding by many appellants of the difference between a question that is a pure question of law and one that is not. As is well known often the law itself does not give bright line guidance on this issue. Much depends on the particulars of the issues, the text of the statutory provisions and the nature of the decision under appeal. That is why I think it may be better simply to have a universal leave requirement. If ultimately the NCAT Act adopts the bifurcated approach (questions of law/other matters) my preference would be to retain the existing ADT model, subject to a universal leave requirement. The provision would then simply speak of 'questions of law' and other matters, described as either the 'merits' or 'other grounds', drawing on the alternative formulations seen at that point in our present appeal provisions.

12 42 University of Queensland Law Journal 2013 VIII RELATIONSHIP TO THE SUPREME COURT Appeal Right: Decisions of the ADT Appeal Panel may be appealed to the Supreme Court on a 'question of law', except in relation to an interlocutory decision, a decision by consent and a costs decision. 50 Decisions of the QCAT appeal tribunal may be appealed to the Queensland Court of Appeal 'only on a question of law', and with the leave of the court. 51 Further in Queensland, the ordinary right of internal appeal is excluded in relation to decisions made by a tribunal constituted by a judge. These appeals go straight to the Court of Appeal. 52 This provision addresses the problem of hierarchical imbalance where a judge sits at first instance and the appeal goes to an Appeal Panel headed by a member, such as a deputy president, who is inferior in status. A party might wrongly think that the presiding member will feel influenced not to upset the judge's decision. I do not think this is a major problem. I have had the experience of sitting at first instance and being overturned by an Appeal Panel with a presiding member who in hierarchical terms is junior to me. In the ACT, in line with the breadth seen in its internal appeal right, the right to appeal to the Supreme Court is wide. The core proposition is that a party may appeal to the Supreme Court on 'a question of law or fact from a decision of the appeal tribunal', with the leave of the Court. 53 Unlike the Commonwealth AAT and Victorian AAT Acts as they then stood, 54 the ADT Act did not clearly state the track that the appeal to the superior court was to follow inside the superior court. Most Supreme Courts nowadays have a Court of Appeal tier and a general trial tier. The result in the case of ADT appeals was that whether the appeal went to the lower or upper tier of the Supreme Court depended on the status of the presiding member. If the presiding member was a judge it went direct to the Court of Appeal. But if the presiding member was not a judge the appeal went to a single judge of the Supreme Court, which opened up the possibility then of a further appeal to the Court of Appeal. That has now been fixed, and all Appeal Panel appeals go direct to the Court of Appeal. It, in turn, has powers to allocate appeals to smaller benches including single judge of appeal benches. 55 Despite these changes, there was a recent instance where an Appeal Panel appeal went to the Supreme Court before a single judge and not, as required, the Court of Appeal. 56 The losing party has since sought leave to appeal to the Court of Appeal. The Court noted the error but refused leave to appeal as the matter had been adequately dealt with by the single judge. 57 These events suggest that it is better for the main tribunal statute to address the track outward appeals to the court are to follow, and not have the question left relatively hidden from view in the recipient court's Act or Rules. The Queensland and UK statutes deal with this issue in the way I prefer. 58 Judicial review: It is important that the judicial review route not be used lightly to circumvent the internal appeal structure of a multi-jurisdictional or super tribunal. It ADT Act s 119. QCAT Act s 150. QCAT Act s 142(1), s 149. ACAT Act s 86(1), s 86(3). AAT Act s 44(3); VCAT Act s 148(1). Supreme Court Act 1970 (NSW) ss 48, 49. Gani v Maiolo [2012] NSWSC Gani v Maiolo [2013] NSWCA 107. QCAT Act ss 149 ff; TCE Act s 13.

13 Vol 32(1) Appeal Panels in Super Tribunals 43 opens up the real likelihood that a losing party will suffer an adverse costs order, and one reflective of court complexities, when that result is relatively unlikely in tribunals with their different approaches to costs. In NSW the Court of Appeal has reinforced the importance of parties using their rights of internal appeal before applying for judicial review. 59 As noted above, the UK legislation simply gives the tribunal authority to deal with judicial review applications. Referrals of Questions of Law: The power to refer a question of law to the Supreme Court for an answer is an orthodox element of super tribunal laws. It is a power to be used circumspectly as, obviously, the tribunal should deal itself with hard questions and not be seen lightly to shuffle them off. At the ADT we have used the power sparingly, but we have sometimes met with criticisms over the way the matter has been presented, for example, the lack of sufficient findings as to fact or a statement of agreed facts, and over the way in which the questions have been formulated. This is an area which would benefit from a protocol or set of rules resolved between the super tribunal and the Supreme Court. The ACAT Act allows for internal referral of a question of law to a tribunal specially constituted as a 'ruling tribunal'. 60 I understand that the internal referral power has been used on a number of occasions to obtain rulings on questions that have been decided differently by differently constituted tribunals. 61 IX CONCLUSION The way the laws governing super tribunals approach the handling of party objections to decisions plays an important role in promoting professionalism and public confidence in tribunals. The tools should include: a narrow power to recall decisions at first instance without them having to go to appeal, a right of internal appeal subject to leave, active administration of the leave discretion to ensure that the appeal facility is used in a way that is proportionate to the underlying issues, and clear lines of appeal onwards to the superior court See AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 at [33]- [34] per Basten JA, who emphasised the importance of judges at first instance in the Court not entertaining a judicial review proceeding in circumstances where there was a right of internal appeal. He noted that the statutory appeal structure required leave to be given before an interlocutory decision could be appealed, and noted that a judicial review applications going to interlocutory decisions could be seen as 'an abuse of process, in that they effectively evaded the need to obtain leave from the Appeal Panel to review such a decision, together with the need to obtain leave from this Court [in the event of an appeal]'. ACAT Act, s 77. I have been advised that ACAT has an important ruling tribunal exercise occurring as I write (May 2013). The questions now formulated go to the capacity to consent to psychiatric treatment, an issue over which there is a difference of opinion as between key ACT agencies. External organisations with an interest in the questions have been invited to intervene.

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