Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCA 327
• Hearing dates: 21 August 2014
• Decision date: 21 August 2014
• Before: Bathurst CJ; Beazley P; Ward JA

Decision

(1) Grant leave to appeal;

 

(2) Direct the applicant to file and serve within 7 days a notice of appeal in the form of the amended draft notice of appeal handed to the Court today;

 

(3) Appeal allowed;

 

(4) Set aside order 3 of the Tribunal below dated 29 May 2014;

 

(5) In lieu thereof order that;

 

(a) Appeal from the decision of the Deputy President dated 16 January 2014 be allowed;

 

(b) Set aside the decision to refuse the applicant's application to be joined to the proceedings;

 

(c) Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) order the appellant to be joined to the proceedings below as the second respondent.

 

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - Civil and Administrative Tribunal Act 2013, s 44 - necessary or proper parties - interests of a statutory applicant - functions and interests of the NSW Commissioner of Police under the Liquor Act 2007, s 116AE; ADMINISTRATIVE LAW - administrative tribunals - NSW Civil and Administrative Tribunal - joinder of parties - whether decision-maker ought to be an active party to review - whether discretion to join parties to be determined by reference to whether decision-maker will be an active party to review
• Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Gaming and Liquor Administration Act 2007; Liquor Act 2007, s 116AE; Police Act 1990; Supreme Court Act 1970; Supreme Court Rules 1970; Uniform Civil Procedure Rules 2005
• Cases Cited: Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; 121 ALR 373; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182; Fagan v The Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666; Geographical Indications Committee v the Honourable Justice O'Connor [2000] FCA 1877; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; 19 VR 422; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101; R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13; Re Multi-Tech Services Pty Ltd (In Liq); Heard v Commonwealth Trading Bank of Australasia (1982) 30 SASR 218; Re New Broadcasting Limited and Australian Broadcasting Tribunal and Brian Sydney Treasure [1987] AATA 151; 73 ALR 420; Re Price and Official Trustee in Bankruptcy (1998) 49 ALD 785; TXU Electricity v Office of the Regulator-General (2001) 3 VR 93; Vandervell Trustees Limited v White [1971] AC 912; Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496
• Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia (7th ed 2011, LexisNexis Butterworths) at 3.41; Aronson and Groves, Judicial Review of Administrative Action (5th ed 2013, Law Book Co) at 756
• Category: Principal judgment
• Parties: Commissioner of Police, New South Wales Police Force (Appellant); Stephen Fine (First Respondent); Independent Liquor and Gaming Authority (Second Respondent)
• Representation: Counsel: J S Emmett; A Sathanapally (Appellant); Submitting appearance (First and Second Respondent); J S Emmett (Amicus curiae); Solicitors:
• File Number(s): CA 2014/00189632

Decision under appeal

• Citation: Commissioner of Police, New South Wales Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24
• Date of Decision: 29 May 2014
• Before: Wright J, PresidentProf Walker, Senior Member
• File Number(s): AP 14/0027

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 10 January 2014, the Liquor and Gaming Authority (the Authority) issued a long-term banning order against the first respondent, Mr Fine, pursuant to the Liquor Act 2007, s 116AE(3)(a). The order was made on the application of the NSW Commissioner of Police (the Commissioner).

Mr Fine sought a review of that order in the Civil and Administrative Tribunal (the Tribunal). The Authority, which was joined as the only respondent, filed a submitting appearance. An application by the Commissioner to be joined as a party was dismissed by the Tribunal. The Commissioner appealed to the Appeal Panel of the Tribunal, which dismissed his appeal.

The Commissioner appealed to the Court of Appeal, which allowed the appeal and ordered, in lieu of the order of the Appeal Panel, that the Commissioner be joined as a party to Mr Fine's review application.

The Court (Bathurst CJ, Beazley P and Ward JA):

1. The power of joinder conferred by the Civil and Administrative Tribunal Act 2013 (the CAT Act), s 44(1), was to be read in conformity with the power of removal under s 44(2), so that a party who is a "proper or necessary party" ought to be joined in the proceedings: [38]

2. The Commissioner was a proper party to be joined in the Tribunal proceedings. The Commission is the statutory applicant before the Authority under the Liquor Act, s 116AE, and bringing an application under s 116AE is in furtherance of the statutory functions of the Police Force: [43]-[44]

3. For the purpose of making "the correct and preferable decision" on a review under the Administrative Decisions Review Act, s 63, the Tribunal, in effect, stands in the position of the decision-maker. Accordingly, persons who are parties to the application before the decision-maker are proper parties before the Tribunal: [46]

4. The Tribunal erred by construing the CAT Act, s 44 by reference to the Civil and Administrative Tribunal Rules 2014, r 27. Such an approach is contrary to the general rule that delegated legislation made under an Act should not be taken into account for the purpose of the interpretation of the Act itself: [48]

Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19].

5. The question whether a party should be joined as a party to proceedings under the CAT Act, s 44 is not to be determined by reference to the question whether the decision-maker will be an active protagonist in the proceedings. That approach imputes a pre-condition to the power of joinder, which places a constraint on the exercise of the discretion under s 44 which is not founded in the text of the legislation: [82]-[83]

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36; Re New Broadcasting Limited and Australian Broadcasting Tribunal and Brian Sydney Treasure [1987] AATA 151; 73 ALR 420; Geographical Indications Committee v the Honourable Justice O'Connor [2000] FCA 1877; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; 19 VR 422 at [31]

Judgment

 

1 THE COURT: On 7 January 2014, upon an application made by the Commissioner of Police (the Commissioner) under the Liquor Act 2007, s 116AE(3)(a), the Liquor and Gaming Authority (the Authority) issued a long term banning order against the first respondent, Mr Fine, pursuant to the Liquor Act, s 116AE. The order, which was to remain in force for a period of 12 months commencing on 10 January 2014, banned Mr Fine from attending "high risk venues" specified in the order.

 

2 Mr Fine sought a review of that order in the Civil and Administrative Tribunal (the Tribunal) pursuant to the Liquor Act, s 116AF. The Authority, which was joined as the only respondent, filed a submitting appearance. An application by the Commissioner to be joined as a party was dismissed by the Tribunal. The Commissioner's appeal to the Appeal Panel of the Tribunal from that decision was also dismissed: Commissioner of Police, New South Wales Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24 (the Appeal Panel decision).

 

3 An appeal from the Appeal Panel lies to the Supreme Court, by leave of the Court, on a question of law: Civil and Administrative Tribunal Act 2013, s 83(1). The Commissioner seeks leave to appeal from the Appeal Panel decision to this Court. The summons for leave to appeal and the appeal have been heard concurrently. As the matter raises an important question relating to the practice and procedure of the Tribunal, leave should be granted. Accordingly these reasons will deal with the matters raised in the arguments advanced to the Court as on appeal.

 

4 There is a question whether the matter is assigned to the Court of Appeal under the Supreme Court Act 1970, s 48. Nonetheless, the Court of Appeal has jurisdiction to deal with the matter: Supreme Court Act, s 51(2). As the Appeal Panel was constituted by the President of the Tribunal who is a Supreme Court judge and one other member it is appropriate that the Court of Appeal hears and determines the matter.

 

5 In this Court, Mr Fine and the Independent Liquor and Gaming Authority (the Authority) each entered a submitting appearance. The Authority subsequently sought leave to withdraw its submitting appearance and to make submissions to the Court as an active party in the proceedings. The Authority proposed that its legal representation be the same as that of the Commissioner. After discussion as to the appropriateness of this course, the Authority withdrew its application and the Court granted leave for the Commissioner's counsel to make additional submissions relevant to the Authority's position, as 'amicus curiae'.

 

6 Before considering the questions of law raised by the Commissioner, it is convenient to consider the relevant legislation.

 

Relevant legislation

 

(a) The Liquor Act 2007

 

7 The objects of the Liquor Act are specified in s 3. Relevantly, s 3(1)(a) provides that it is an object of the Act to:

 

"... regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community."

 

8 Section 3(2) provides that in order to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard, inter alia, to:

 

"... the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour) ..."

 

9 The Liquor Act, s 116AE(1) provides that the Authority may make a long term banning order prohibiting a person from entering or remaining on any high risk venue specified in the order, for a period not exceeding 12 months. "High risk venue" is defined in s 116AA, inter alia, to be licensed premises with permission to trade after midnight and with a capacity in excess of 120 patrons.

 

10 A long term banning order may only be made on the application of the Commissioner: s 116AE(2). This is to be contrasted with the operation of s 53 of the Liquor Act which permits the Authority of its own initiative to impose conditions on a licence or to alter the conditions of a licence.

 

11 Either one of two conditions must be satisfied in order for a long term banning order to be made. The first is that the person the subject of the proposed order has been charged with, or found guilty of, a serious indictable offence involving alcohol-related violence, whether or not committed in the Kings Cross precinct: s 116AE(3)(a). The second is that the person has been given three temporary banning orders during a period of 12 months: s 116AE(3)(b). It is the first of these conditions that was satisfied in the present case. An order may not be made unless the person the subject of the application has been given notice of the application and is given a reasonable opportunity to make submissions to the Authority in respect of the application: s 116AE(4).

 

12 Pursuant to s 116AF, a person the subject of a long term banning order may apply to the Tribunal for administrative review of the Authority's decision under the Administrative Decisions Review Act 1997. No right to seek a review under the Administrative Decisions Review Act is conferred upon the Commissioner.

 

(b) The Gaming and Liquor Administration Act 2007

 

13 The Authority is constituted by, and its functions specified in, the Gaming and Liquor Administration Act, Pt 2. Under that Part, the Authority is constituted as a corporation: s 6(1), and, pursuant to s 6(2), is a New South Wales Government agency. Section 7 provides for the membership of the Authority. At least one member, other than the Chief Executive, must be a person who is or has been a judge, or has been an Australian lawyer for at least seven years: s 7(2).

 

14 The Authority has the functions conferred or imposed on it by the Act and any other legislation. One of its functions is the making of banning orders pursuant to s 116AE. It may not employ staff but may, amongst other arrangements, arrange for police officers to be made available to perform services for the Authority: s 9(1), s 9(2) and s 9(3)(a). Pursuant to s 11, the Authority and the Commissioner may enter into arrangements for the supply to the Authority of information contained in the records of the New South Wales Police Force to assist in the effectual administration of the legislation.

 

(c) The Administrative Decisions Review Act 1997 (the ADR Act)

 

15 An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction: s 7(1). An administrator is the person or body that makes the administratively reviewable decision: s 8(1). The Tribunal has jurisdiction over an administratively reviewable decision, relevantly, if enabling legislation provides that an application to the Tribunal for review of the decision may be made: s 9(1). In this case, the Liquor Act, s 116AF was the enabling legislation providing for review of the decision imposing the banning order. An administrator whose decision is under review is required to lodge with the Tribunal a copy of any statement of reasons and every document or part of a document in the possession or under the control of the administrator that the administrator considers relevant to the determination of the application by the Tribunal: s 58.

 

16 Part 3, Div 3 provides for the powers of the Tribunal on administrative review, relevantly as follows:

 

"63 Determination of administrative review by Tribunal

 

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

 

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

 

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

 

...

 

66 Effect of administrative review decision

 

(1) ...

 

(2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken:

(a) to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and

(b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise."

 

(d) The Civil and Administrative Tribunal Act 2013

 

17 Part 3 of the Civil and Administrative Tribunal Act provides for the jurisdiction of the Tribunal. For present purposes it is sufficient to refer to s 28(1), which provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. In this case, by operation of the Liquor Act, s 116AF and the ADR Act, s 9, the Tribunal had jurisdiction to review the decision of the Authority.

 

18 Part 4, Div 1 provides for the practice and procedure of the Tribunal. Section 36 states that the "guiding principle to be applied" is:

 

"(1) ... to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

 

...

 

(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

 

..."

 

19 Part 4, Div 3 makes provision for participation in proceedings. Section 44 provides, relevantly:

 

"44 Parties and intervention

 

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

 

(2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has:

(a) been improperly or unnecessarily joined, or

(b) ceased to be a proper or necessary party.

 

...

 

(4) The following persons may intervene and be heard in proceedings to which they are not already parties:

(a) the Attorney General,

(b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings."

 

20 Section 46(1) provides:

 

"46 Powers in relation to witnesses

 

(1) The Tribunal may:

(a) call any witness of its own motion, and

(b) examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and

(c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and

(d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings."

 

21 Part 6 provides for appeals. Relevantly, an appeal against an internally appealable decision may be made to the Appeal Panel by a party to the proceedings: s 80(1). Leave is required in the case of an interlocutory decision: s 80(2). The Appeal Panel may deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing: s 80(3)(a), and fresh and additional evidence may be received if the Appeal Panel considers it appropriate: s 80(3)(b).

 

22 The Civil and Administrative Tribunal Rules 2014, r 27 is also relevant. It provides:

 

"27 Parties to proceedings for general decision or administrative review decision

 

The parties to proceedings for a general decision or administrative review decision are:

(a) the applicant, and

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant) - the person or body in respect of whom the order or other decision is sought, and

 

...

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

 

Note. In proceedings for an administrative review decision, the administrator who made (or is taken to have made) the administratively reviewable decision concerned would be the person or body referred to in paragraph (b)."

 

Decision of the Tribunal

 

23 As indicated, Mr Fine made an application to the Tribunal for review of the banning order and the Commissioner made application to be joined as a party. That application was refused. At the time of making the application, the Authority had filed a submitting appearance. When the Deputy President indicated her intention to refuse the Commissioner's application, the Authority decided to withdraw its submitting appearance.

 

24 In her reasons for refusing the application for joinder, the Deputy President stated that the proceedings before the Tribunal were not "adversarial in the usual sense of that word and the need for a contradictor was not pressing". The Deputy President noted that the Authority would, "as is usual of course", file documents in the proceedings as required by the Administrative Decisions Review Act, s 58. The Deputy President also noted that the Police Force could give evidence in the proceedings "where appropriate".

 

Decision of the Appeal Panel

 

25 Before the Appeal Panel, the Commissioner advanced two bases as to why he ought to have been joined as a party on Mr Fine's application for a review of the decision of the Authority in making the banning order. First, the Commissioner contended that he was a proper party to be joined because his interests were affected by the Tribunal proceedings. He submitted additionally that he was in the best position to assist the Tribunal, to test Mr Fine's case and to advance a contradictory case. The Commissioner contended, secondly, that the application of the Hardiman principle meant that the Authority was not an appropriate active party to the proceedings.

 

26 The Appeal Panel dismissed the Commissioner's appeal. In doing so, the Appeal Panel sought to identify the principles that governed the exercise of the discretionary power conferred by s 44 for the joinder of a party (the s 44 issue). The Appeal Panel also considered the application of the Hardiman principle to proceedings in the Tribunal exercising its administrative review function (the Hardiman issue).

 

27 It is convenient to review the Appeal Panel's reasoning in respect of each basis upon which it rejected the Commissioner's appeal.

 

First basis: the s 44 issue

 

28 The Appeal Panel recognised, at [35], that the Civil and Administrative Tribunal Act, s 44 conferred a wide discretion on the Tribunal in determining who ought to be joined to proceedings as a party. It considered that the discretion was similar to, but wider than, the discretion conferred under the Uniform Civil Procedure Rules 2005 (UCPR), r 6.19. The Appeal Panel also noted that, unlike the Administrative Appeals Tribunal Act 1975 (Cth), s 30(1A), the power to join a party was not constrained by the requirement that the party seeking to be joined demonstrate that that party's "interests are affected".

 

29 By reference to the "broad discretion" conferred by UCPR, r 6.19, the Appeal Panel, at [36], articulated the "basic principle" governing the exercise of the discretion under s 44 in the following terms:

 

"... a court (or tribunal) should take the course most conducive to the just resolution of the dispute, having regard to the desirability of minimizing the costs and delay of litigation ..."

 

30 Notwithstanding its acknowledgement of the width of the discretion conferred by s 44, the Appeal Panel nonetheless considered that criteria governing the exercise of the discretion developed under more narrowly drawn legislation remained relevant as "useful guidance" to the principles that governed the exercise of the discretion. In this regard, although the Appeal Panel had noted that there was no requirement that a party seeking to be joined demonstrate that its "interests were affected", it stated, at [37], that "the interests in question" of a party seeking to be joined were not confined to financial, proprietary, legal or equitable rights, or such other interest as might be recognised in private law: see Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd [1994] FCA 996; 121 ALR 373 at 382, 395. The Appeal Panel stated that in the context of administrative review, a statutory authority may have an interest in the proper performance of its role such as to be a proper party to the proceedings: Re Price and Official Trustee in Bankruptcy (1998) 49 ALD 785 at 788.

 

31 The Appeal Panel, at [38], dealt with the Commissioner's argument that he was in the best position to assist the Tribunal and be the appropriate contradictor by observing that no evidence had been adduced to support that proposition, and noting that it was "a serious matter" to join a party in Tribunal proceedings. The joinder power was not to be exercised lightly. According to the Appeal Panel, "the normal position" in administrative review proceedings in the Tribunal was that the applicant and the person or body in respect of whom the order or other decision was sought were parties: see the Civil and Administrative Tribunal Rules, r 27(a) and (b). The Appeal Panel noted that this was the "orthodox position" in other merit review tribunals such as the Land and Environment Court: see at [41].

 

32 The Appeal Panel, at [41], next referred to the position in inter partes litigation with more restrictive joinder rules, noting that if the dispute could be adjudicated in the absence of a party and where no order was sought against that party, joinder was unnecessary and generally not allowed: Vandervell Trustees Limited v White [1971] AC 912 at 930 and 944; Walker v Commonwealth Trading Bank of Australia (1985) 3 NSWLR 496.

 

33 The Appeal Panel accepted, at [42], that the Authority's interests, in the broad sense, were affected if a person challenged one of its decisions. By contrast, it characterised the Commissioner's role as investigative with the power to institute proceedings to seek an order from the Authority. As the Appeal Panel saw it, the Commissioner's functions were not affected in the same way as those of the Authority. It considered that it was not evident that the Commissioner's role in the proceedings could not be properly performed without the need for joinder. It pointed out that that was the position in relation to the Commissioner's role in criminal prosecutions on indictment in which the prosecuting authority seeks information, records and other material held by the Police Force.

 

34 The Appeal Panel concluded, at [43], that the Tribunal was required to exercise its powers and to interpret the Act and the Rules to give effect to the "guiding principle" to facilitate the just, quick and cheap resolution of the real issues in proceedings. It considered that having two respondents in the proceedings, that is, the Commissioner as well as the Authority, might increase the costs of proceedings. The Appeal Panel concluded the Commissioner had not established that his joinder was "necessary or appropriate in order to do justice in the proceedings". There was, therefore, no error in the decision of the Tribunal Member in refusing the Commissioner's application for joinder.

 

Determination of the s 44 issue

 

35 The Commissioner must establish error of law in the Appeal Panel's determination. The Commissioner in his argument identified as the relevant error the failure of the Appeal Panel to recognise that upon a merits review, the Tribunal stood in the shoes of the decision-maker: see ADR Act, ss 63(1) and (2). If this proposition is made out, the relevant error will be an error in the construction and application of the relevant legislation. For the reasons which follow, the Court is satisfied that the Commissioner has established this error of law. The Court has also concluded that the Appeal Panel erred in failing to have regard to the interest of the Police Force in the outcome of a determination relating to an application for a banning order. Expressed in this way, the error is probably best understood as being the obverse of the first error. Finally, the Court is of the view that the Appeal Panel placed constraints upon the exercise of the discretion which are not warranted by the language of the section.

 

36 The Appeal Panel was determining an appeal from an interlocutory decision of the Tribunal at first instance. Save for the requirement of leave the nature of the appeal was not identified. However, the Tribunal did not appear to proceed by way of a new hearing: the Civil and Administrative Tribunal Act, s 80(2). Presumably, therefore, the Appeal Panel approached the appeal on the basis that it was necessary for the Commissioner to establish error in the Tribunal's decisions.

 

37 The Tribunal decision, as the Appeal Panel correctly identified, was a discretionary determination as to whether the Commissioner should be joined as a party. In determining whether the Tribunal erred in refusing the Commissioner's application, the Appeal Panel examined the principles that governed the exercise of discretion conferred by s 44. As the Appeal Panel recognised, the starting point was the text of the governing statute.

 

38 The power of joinder conferred by the Civil and Administrative Tribunal Act, s 44 is stated in general terms. It is a power to join a party "if the Tribunal considers the person should be joined as a party": s 44(1). The Tribunal also has the power to remove a party. The power of removal may be exercised if the person is "improperly or unnecessarily joined, or ... ceased to be a proper or necessary party": s 44(2). The Commissioner submitted that the power of joinder conferred by s 44(1) was to be read in conformity with the power of removal so that a party who was a "proper or necessary party" ought to be joined in the proceedings. That submission may be accepted. However, the question remains as to the meaning or, perhaps more correctly, the parameters of the expressions "proper" and "necessary", noting that the expressions are used in s 44(2) disjunctively and that a "proper" party may not be a "necessary" party.

 

39 A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. For that reason, the decision-maker is usually joined as the decision made may be affected by the application. The intent and effect of the joinder is to ensure that the decision-maker is bound by the determination of the Tribunal. The Appeal Panel appeared to accept that this was so: see at [37], referred to at [30] above. Further, the Rules provide for the joinder of the decision-maker: r 27(b). For that reason alone, the Authority was properly joined as a party in this case and because of the provisions of the rules is a necessary party to the proceedings. However, the fact that a party such as a decision-maker is a necessary party to proceedings does not of itself require that party to take an active role in the proceedings. This is discussed below in relation to the Hardiman principle.

 

40 The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party. A Minister may have an interest in being a party. Reasons why this may be so would include where a particular decision affects the operation of a Minister's department or if there is a matter of public interest relevant to the decision to be made of which the Tribunal ought to be informed. This is recognised by s 44(4)(b) which enables a Minister or the Attorney General to intervene.

 

41 A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order.

 

42 The statutory "mission" of the New South Wales Police Force is "to work with the community to reduce violence, crime and fear": the Police Act 1990, s 6(1). The functions of the Police Force include "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way": s 6(3)(b). The Commissioner of Police, in turn, is responsible for the effective and efficient management and control of the functions of the Police Force: s 8(2)(b).

 

43 The Liquor Act, s 3(2) provides that in order to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour). The functions of the Police Force specified in the Police Act, s 6(3)(b) and the provisions of the Liquor Act, in particular, s 3(2), are, properly viewed, complementary. This is reinforced by the requirement in the Liquor Act, s 116AE, that the Commissioner of Police is the only party who may bring an application for a long term banning order.

 

44 It follows that the Commissioner is a proper party to be joined in the Tribunal proceedings. He is the statutory applicant before the Authority. In bringing the application under s 116AE, he is doing so, not only pursuant to the statutory power conferred by that section, but also in furtherance of the statutory functions of the Police Force. He has an interest in not only the decision of the Authority, but also in the outcome of any administrative review of that decision.

 

45 The Appeal Panel was in error in not recognising that this was the Commissioner's interest such that he was a proper party to the proceedings in the Tribunal. The error could be characterised as an error to take into account a relevant consideration. However, as already indicated, these considerations are probably best viewed as the obverse of the Appeal Panel's error in failing to consider the application for joinder in the context of the Tribunal's statutory review power.

 

46 Under the Administrative Decisions Review Act, s 63, the Tribunal is required to make the correct and preferable decision on the material then before it: s 63(1). The Tribunal is not confined to the material before the decision-maker. Importantly, for the purposes of making "the correct and preferable decision", the Tribunal may exercise all of the functions conferred on the decision-maker. In effect, in exercising the merits review function, the Tribunal stands in the position of the decision-maker. It must follow that persons who are parties to the application before the decision-maker are proper parties before the Tribunal. There was, therefore, an error by the Appeal Panel either in failing to have regard to the legislative function of the Tribunal when determining whether it had erred in the exercise of its discretion on the joinder application or, alternatively, in failing to construe and properly apply the legislation to the matter at hand. Under either articulation of the error, the error was an error of law.

 

47 There were, with respect to the careful reasons of the Appeal Panel, other difficulties with the approach which may have led to the error identified and to which it is appropriate to refer. The Appeal Panel, in stating that the "normal position" before the Tribunal was the joinder of the parties referred to in r 27(a) and (b), appeared to give those provisions primacy in the sense that they either governed or were relevant to the question whether a party should be joined under s 44.

 

48 Rule 27 does not have that operation. Rather, it is a prescription of those who are the parties to an administrative review decision. That prescription includes a party who has been joined pursuant to s 44. Thus, to construe s 44 by reference to r 27 would be circular. If this understanding of this part of the Appeal Panel's reasoning is correct, it was an error of law to construe the discretion conferred by s 44(1) by reference to r 27(a) and (b) only. Indeed, such an approach is contrary to the general rule that delegated legislation made under an Act should not be taken into account for the purpose of the interpretation of the Act itself: see Master Education Services Pty Ltd v Ketchell [2008] HCA 38; 236 CLR 101 at [19] and Pearce and Geddes, Statutory Interpretation in Australia (7th ed 2011, LexisNexis Butterworths) at 3.41.

 

49 Another difficulty with the reasoning was the comparison made with other administrative decision-makers whose decision-making functions operate differently from the administrative decision in this case. For example, the reference to the decision of a local council subject of review in the Land and Environment Court is not an appropriate analogy. The Authority determines an application as between two persons, the Commissioner as applicant and the named person as the respondent to the application. The Authority makes a decision having regard to the information before it, including any submissions made by the respondent. The Authority has in that sense an adjudicative function. A local council does not make an adjudicative decision of the kind made by the Authority. Rather, it makes a decision on an application before it, having regard to the planning laws, instruments and policies which govern its decision-making. It does not adjudicate upon an application between opposing parties. If a review is sought of a local council's decision, it is, by nature of the decision involved, a proper party and active protagonist in the dispute.

 

50 Likewise, the comparison with the role of the Police Force in a prosecution upon indictment did not provide useful guidance. The role of the Police Force in such a prosecution is different from the role of the Commissioner in bringing an application under s 116AE. Nor can the role of the Authority be equated with the role of the Director of Public Prosecutions in a criminal prosecution on indictment.

 

51 Whilst these comparisons of themselves do not constitute errors of law, the lack of comparability in these examples provides some background as to why the Appeal Panel erred in the manner indicated.

 

52 The Appeal Panel also referred to the principle said be derived from Walker v Commonwealth Trading Bank of Australia and Vandervell Trustees Ltd that in ordinary inter partes litigation, where the issue in dispute could be effectively and completely adjudicated upon in the absence of the party sought to be joined and where no order was sought against that party, joinder was unnecessary and ought generally not be allowed.

 

53 In Walker v Commonwealth Trading Bank of Australia, a liquidator was seeking to recover loan repayment monies paid by the company to the Bank. The loans were secured by mortgages and guarantees. The Bank sought to join the mortgagors and guarantors in the preference proceedings. In doing so, the Bank was not intending to make any claim against those parties, but sought their joinder so as to ensure they were bound by the Court's finding on the question of preferences. The Supreme Court Rules 1970, Pt 8, r 2(b), which was under consideration provided that a party could be joined "where the Court gives leave to do so". Rule 2(a) provided that parties could be joined where common questions of law or fact would arise if separate proceedings were brought by or against the party to be joined and all rights to relief claimed in the proceedings were in respect of or arose out of the same transaction.

 

54 Needham J was unable to find any commonly accepted principles in the case law as to joinder under r 2(b). His Honour concluded, at 502, that in the absence of any binding statement of principle, "the safe course [was] to construe the words of the rule in accordance with ordinary principle".

 

55 His Honour held that the joinder of the mortgagors, against whom no claim was made, was not necessary in that case. His Honour did not consider that the joinder of the mortgagors was necessary to ensure that all matters in dispute would be effectually and completely adjudicated upon. In coming to this conclusion, his Honour did not follow the decision in Re Multi-Tech Services Pty Ltd (In Liq); Heard v Commonwealth Trading Bank of Australasia (1982) 30 SASR 218, where Jacob J had considered that the mortgagors had a common interest with the Bank in resisting the preference claim of the liquidator and that it was expedient in the interests of justice that the mortgagors be bound. Needham J also considered Vandervell Trustees Ltd v White, but without any endorsement of its reasoning. It should be noted, however, that the important consideration in Vandervell was that no claim was made by or against the revenue authority, being the party sought to be joined.

 

56 There was no error in the Appeal Panel's consideration of these authorities. However, it was necessary in each case to determine whether any principle they considered was to be derived from those authorities was relevant to s 44. These two decisions and the principles stated in them did not provide a relevant guide to the exercise of the discretion in this case. Although no relief was sought against the Commissioner as such, nor was there in any relevant sense a question of the Commissioner being bound by the decision in the sense argued in Walker, for the reasons already given, the Commissioner had an interest in the outcome of the Tribunal proceedings.

 

57 In conclusion on this point, whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case.

 

The Hardiman issue

 

58 The Appeal Panel characterised the Hardiman principle as a rule which "prevents a Tribunal from appearing as an active party in judicial review proceedings of one of its decisions": see Aronson and Groves, Judicial Review of Administrative Action (5th ed 2013, Law Book Co) at 756. The Appeal Panel also noted the comment made by Aronson and Groves that there were many exceptions and extensions to the rule such that its precise scope was not entirely settled: see also TXU Electricity v Office of the Regulator-General (2001) 3 VR 93 at [18]-[21] per Ashley J.

 

59 The Appeal Panel considered that the authorities indicated that a cautious approach to the application of the Hardiman principle in merits review proceedings was warranted. First, it noted that an order of remittal to the primary decision-maker was rare, particularly where the obligation on the Tribunal was to make the "correct and preferable decision". Secondly, the role of the Tribunal in merits review proceedings was "fundamentally different" from judicial review. Merits review involved the making of a new decision after consideration of the material presented to the Tribunal. In this regard, in Re New Broadcasting Limited and Australian Broadcasting Tribunal and Brian Sydney Treasure [1987] AATA 151; 73 ALR 420 Davies J expressed the opinion that the Administrative Appeals Tribunal could best exercise its function and make the "correct and preferable decision" if it was assisted by the decision-maker.

 

60 The Appeal Panel found further support for the propositions stated in the New Broadcasting in the decision of the Victorian Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; 19 VR 422 where the Court stated at [31]:

 

"The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the Tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed - exclusively - by the aims and objectives of the statutory scheme."

 

61 The Appeal Panel considered, at [56], that these factors applied to this case and that the Authority was not required to take a purely passive role in the proceedings before the Tribunal. Accordingly, the Appeal Panel held that it was not necessary that the Commissioner be joined in the proceedings to act as a contradictor. The Appeal Panel noted, however, that the Hardiman principle was not "immutable" and that there remained in the Tribunal the flexibility to deal with "special or unusual cases", where it was established by the evidence and circumstances of the case that the joinder of another party was appropriate.

 

62 The Hardiman principle, so called, derives from the comments of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 at 35-36. A person could apply to the Australian Broadcasting Tribunal (ABT) for approval of a transaction relating to acquisition of shares in a licensee company. The broadcasting legislation under consideration in that case limited the number of television licences that could be owned by one person. The ABT was required to make a thorough investigation into all matters relevant to the enquiry it was undertaking. In the course of conducting an enquiry, the ABT had limited the extent of the enquiry which it was prepared to undertake and also placed restrictions upon the manner in which the proceedings before it were conducted.

 

63 The High Court held that the ABT had failed to discharge its statutory responsibility in that it had precluded itself from enquiring into matters that were relevant to the enquiry and which it was bound to investigate. The High Court ordered that a writ of mandamus issue against the ABT requiring it to conduct the enquiry in accordance with law.

 

64 At the conclusion of its reasons the High Court expressed its disapproval of the approach taken by the ABT, which had presented a substantive argument to the Court in contesting the claim for relief brought against it. The Court stated, at 35-36:

 

"In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the [ABT] in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the [ABT]."

 

65 Although the Hardiman principle has been the subject of considerable judicial comment, its juridical basis does not appear to have been articulated. Having regard to the terms in which the High Court made its observation in the passage above, it may not be appropriate to characterise their Honour's comments as a principle of law. However, it is an important and salutary reminder that an adjudicative decision-maker body is not usually an appropriate body actively to participate in judicial review proceedings. More important in the present context are the High Court's reasons underlying its observation. The principal reason for the inappropriateness of an adjudicative body taking an active role in review proceedings was because there was a danger its impartiality would be compromised.

 

66 The Hardiman principle was considered by Davies J in Re New Broadcasting Limited and Australian Broadcasting Tribunal and Brian Sydney Treasure at 430-1. His Honour observed that in the Administrative Appeals Tribunal (AAT), it was not unusual for the representative of the decision-maker to play an active role in examining and cross-examining witnesses and putting substantive arguments to the Court. His Honour commented that this was a normal and desirable course. One reason for this was that the AAT usually became the decision-maker in the matter and rarely referred the matter back to the original decision-maker. His Honour added that in a case where the only parties before the AAT were the applicant and, in that case, the ABT, it was preferable that its representative undertake the task of testing evidence rather than the AAT doing so.

 

67 In Geographical Indications Committee v the Honourable Justice O'Connor [2000] FCA 1877, the Full Court of the Federal Court, in considering the remarks of Davies J in Re New Broadcasting Limited observed, at [35], that it was plain from those remarks that the position would be different where there were other parties before the Tribunal who would be expected to adopt the role of contradictor and place before the Tribunal the relevant material. In the Court's view, the role to be fulfilled by a decision-maker where there was a merits review of that decision was to be determined having regard to the circumstances of each case and in the context of the legislation under consideration: see Fagan v The Crimes Compensation Tribunal [1982] HCA 49; 150 CLR 666 at 681-2; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 at 207.

 

68 In addition to these two authorities, the Appeal Panel, in its emphasis upon the differences between judicial and merits review, referred to the observations of the Victorian Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel at [34], where the Court said:

 

"First, judicial review is concerned with error of law. There is no room for debate about the merits of the decision under challenge. Secondly, if the decision under review is found to be vitiated by error of law, the ordinary course is for the decision to be quashed and the matter remitted to the primary decision-maker, which must then carry out the decision-making process afresh in accordance with the legal ruling of the court. Hence the importance of the decision-maker preserving its impartiality." (citation omitted)

 

69 The Court of Appeal considered, at [39], that in the merits review procedure under consideration in that case, the Victorian Commission for Gambling Regulation "could - and should - have played an active role in the [merits] review proceeding" before the Victorian Administrative Appeals Tribunal. The Court's decision needs to be viewed in context. The Court of Appeal noted, at [29], that the obligation of the primary decision-maker:

 

"... is to assist the Tribunal in the review of the primary decision. In discharging that obligation, it is entirely proper for the primary decision-maker to seek actively to support the decision under review."

 

70 In this regard, the Court of Appeal observed that the Transport Accident Commission and municipal authorities frequently appeared and played active roles before the Tribunal. However, the Victorian Transport Accident Commission and municipal authorities are protagonists in the matters that lead to and are the subject of merits review. This has already been explained above. In the case of the Victorian Transport Commission, the Commission had the statutory functions to receive and assess, accept or reject claims for compensation and to defend claims relating to claims for compensation: the Transport Accident Act 1986 (Vic), s 12(1)(b) and (c).

 

71 The Court of Appeal, at [30], recognised that active participation of the primary decision-maker was not mandatory, but considered that active participation was:

 

"... of particular importance if the person seeking review of the decision did not appear before the decision-maker, or if there would otherwise be no contradictor ..." (citation omitted)

 

72 The Court continued:

 

"But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker playing such a role. The most obvious example is a tripartite planning appeal before the Tribunal, where the permit applicant and the objectors will be on opposite sides but the planning authority nevertheless seeks actively to defend the decision which it made, and may well adopt a position different from both applicant and objectors on facts in issue and on conditions to be attached to approval."

 

73 The Court explained, at [31], that "part of the rationale" for participation by the primary decision-maker was the "unique contribution to make to the review", in its "experience, knowledge and expertise" not possessed by the tribunal or any party to the review proceedings. The Court continued, in a passage cited by the Appeal Panel:

 

"The decision-maker is the only party to the review proceeding whose participation is governed exclusively by the aims and objectives of the statutory scheme."

 

74 The Court continued, at [32]:

 

"... where the adversary parties can be expected to cover the relevant issues, the decision-maker - or the Tribunal itself - may decide that there is little for the decision-maker to contribute to the Tribunal proceeding. But the presence of a contradictor is no guarantee that all relevant matters will be canvassed, as the present case illustrates."

 

75 There was a particular circumstance in Macedon Ranges Shire Council v Romsey Hotel that caused the Court to consider that the Commission ought to have been an active party. The basis upon which the Commission had reached its decision, namely, a community survey opposing the introduction of gaming, was not relied upon by the Macedon Ranges Shire Council in the merits review application. Nor was the survey material before the Tribunal.

 

76 The Court of Appeal took the view that the Tribunal erred in law in disregarding the evidence of community opposition which had been evidenced in the survey. The Court in Macedon Ranges accepted that the reasons of the Commission were detailed and sufficiently conveyed to the Tribunal as to how it had reached its decision. The Court also noted that there was a deficit in the Commission's compliance with its obligation to forward documents to the Tribunal, as it is had not forwarded the survey material.

 

77 The decision in Macedon Ranges was made in the particular circumstances of that case. The case is not authority that where a decision-maker is an active party in merits review proceedings, other parties ought not be made parties or alternatively are not appropriate parties. Nor is it authority for the proposition that a decision-maker should always be an active party in merits review proceedings.

 

78 Further, it was important in Macedon Ranges that the decision-maker had experience, knowledge and expertise that "adversaries" in the Tribunal did not possess. That is not the case here. The Commissioner would have the knowledge and expertise relevant to the making of a banning order. Although arrangements may be made for the supply of information contained in police records to assist in the effectual administration of the legislation: Gaming and Liquor Administration Act, s 11, the Police Force is in fact the primary repository of such information and is likely to be of more immediate practical assistance to the Tribunal in a particular matter.

 

79 In the present case, whilst the Appeal Panel correctly observed that the Hardiman principle is not immutable, as the decisions referred to above demonstrate, it concluded, at [59], that the Hardiman principle does not apply generally to merits review proceedings such as were before the Tribunal, although noted that in "an appropriate case" the joinder of another party would be permitted. It is apparent from the comments of the Appeal Panel earlier in that paragraph that it considered that joinder of another party would only be permitted in a "special or unusual case". The Appeal Panel then concluded, at [60], that the Authority was not required to take a purely passive role in these proceedings before the tribunal.

 

80 This involved error at two levels. First, the Tribunal has restricted the joinder of a party to circumstances where there is a "special or unusual" case. As explained above, s 44 is not so limited. The error in failing to appreciate the role of the Tribunal on a hearing of the review application and in proceeding on a basis that the discretion was constrained by reference to principles applicable in other contexts, was such as to warrant appellate intervention.

 

81 Secondly, having determined that the Hardiman principle did not apply in this case and hence that there was no impediment to active participation by the Authority, the Appeal Panel found the joinder of the Commissioner to act as a contradictor was not necessary. However, the question whether a party should be joined as a party to the proceedings is not to be determined by reference to the question whether the decision-maker is or is not an active protagonist in the proceedings. To take that approach imputes a pre-condition to the power of joinder which is not founded in the text of the legislation. Moreover, the Tribunal in exercising its discretion failed to have regard to the fact that the very party who could have acted as a contradictor had filed a submitting appearance.

 

82 There is another way of viewing this error. Although the Appeal Panel did not dictate that the Authority must take an active part in the proceedings, it nonetheless considered that there was a party, the Authority, who should be a contradictor in the proceedings and, it seems, assumed that the Authority would be an active party. In doing so, the Appeal Panel effectively placed a constraint on the exercise of discretion conferred by s 44 in that it failed to assess the factors relevant to determining whether the Commissioner should be joined as a party. Even if the Authority became an active participant in the proceedings, that fact alone could not determine whether the Commissioner was a proper party. However, for the reasons explained above, doubts exist as to whether the Authority was an appropriate contradictor in this case in the proceedings before the Tribunal.

 

83 Accordingly, the Court confirms its orders made on 21 August 2014 as follows:

 

(1) Grant leave to appeal;

 

(2) Direct the applicant to file and serve within 7 days a notice of appeal in the form of the amended draft notice of appeal handed to the Court today;

 

(3) Appeal allowed;

 

(4) Set aside order 3 of the Tribunal below dated 29 May 2014;

 

(5) In lieu thereof order that:

 

(a) Appeal from the decision of the Deputy President dated 16 January 2014 be allowed;

 

(b) Set aside the decision to refuse the applicant's application to be joined to the proceedings;

 

(c) Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (NSW) order the appellant to be joined to the proceedings below as the second respondent.

 

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Amendments

03 March 2015 - Minor typographical errors corrected in [17] and [44].

Decision last updated: 03 March 2015