AY v Department of Education and Training

[2009] NSWADT 265

CITATION:	AY v Department of Education and Training [2009] NSWADT 265
DIVISION:	General Division
PARTIES:	APPLICANT AY RESPONDENT Department of Education and Training
FILE NUMBER:	093129
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	18 September 2009
DATE OF DECISION:	13 October 2009
BEFORE:	Wilson R - Judicial Member
CATCHWORDS:	Application for leave to be represented by an agent
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT P Johnston (the proposed agent) RESPONDENT J McDonnell, solicitor
ORDERS:	Leave is granted to Mr Johnston to represent the applicant in the substantive proceedings

REASONS FOR DECISION

1 The applicant in these proceedings seeks to be represented by an agent pursuant to s.71 of the Tribunal’s enabling legislation. The same application has been made in proceedings 093128, where the respondent is the Attorney General’s Department. Following recent amendment, the section now requires that leave be obtained where the proposed agent is not a legal practitioner. The respondent opposes the grant of leave.

2 Patently, the provision requiring leave is to enhance the Tribunal’s powers in relation to its ability to control its own process. Section 71(2) enables the proposed agent to make the application for leave, with the consent of the party to be represented.

3 The Tribunal’s discretionary power in this regard is unfettered, although subject to principles dictating its proper exercise, such as the need to take into account relevant considerations and the like. As the proposed agent is the moving party (s.71(2)), he or she would have to establish grounds upon which the Tribunal may exercise its power by granting leave, as leave does not follow automatically upon the mere making of an application. The parties, including the proposed agent, did not particularly address this point and have focussed more on the reasons why leave should be refused. Given this approach, it is sufficient here to say that there is evidence showing that the proposed agent has in the past acted for the applicant in relation to other dealings that he has had with government agencies and that this could well suffice to enable the Tribunal to grant leave, should it wish to after consideration of all relevant matters. Consequently, attention could be conveniently directed to the reasons why leave should be refused.

4 The applicant has filed detailed submissions, and the respondent has filed affidavit evidence together with submissions.

5 The respondent essentially questions the ability of the proposed agent to act in the professionally detached manner that is required in order to represent another’s interests effectively. This is but one aspect of the overall discretion, and does not exhaust all relevant considerations. The discretion is a broad one and its purpose is to empower the Tribunal to control its own processes so as to ensure a just and fair determination: whether a representative is capable of conducting the proceedings on behalf of one party in a professionally detached manner is but one relevant consideration.

6 The respondent’s evidence and submissions identify a number of relevant matters. They are all of relevant concern, particularly whether the representative is likely to act in his or her own interests, rather than in the interests of the party concerned; whether the representative is inclined to act so as to abuse the process by using the proceedings for a collateral purpose; whether the representative is able to properly present the party’s case by way of proper evidence and submissions; and whether the representative will or will not adhere to directions the Tribunal may give from time to time. The respondent quite properly puts these matters forward as significant arguments and, it is correct to say, they are all matters that any representative must adhere to. Any breach would clearly enable the Tribunal to refuse leave. It is also worth noting that where a representative is unable to properly negotiate with an opposing party, as where a course is adopted which has no legitimate forensic purpose, there may also be a sound basis for refusing leave. Consequently, the respondent’s submissions are to a degree persuasive, and they are supported by some cogent evidence, which for present purposes is accepted.

7 However, in the present matter, and at this early stage, the Tribunal may well be assisted in the presentation of relevant evidence and confinement of issues if the proposed agent is granted leave to represent the applicant. This, of course, will depend upon how the proposed agent conducts himself and the litigation. At this stage the Tribunal is persuaded that the better course is to grant leave to the proposed agent to represent the applicant, despite the significant matters that the respondent has raised. If, as the proceedings develop, this becomes an unwise exercise of the Tribunal’s discretion the grant of leave can be revisited at any time (s71(3)(b)), either by way of application or on the Tribunal’s own motion. This is the better way to approach the concerns in the present matter that the respondent has properly raised as it enables the Tribunal to ensure that the matter before it is conducted properly by reference to events that occur during the course of the matter itself.

8 Accordingly, leave is granted to Mr Johnston to represent the applicant in these proceedings.