NZ v NSW Land and Housing Corporation

[2007] NSWADTAP 20

Appeal Panel - Internal

CITATION:	NZ v NSW Land and Housing Corporation [2007] NSWADTAP 20
PARTIES:	APPELLANT NZ RESPONDENT NSW Land and Housing Corporation
FILE NUMBER:	079008
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	2 April 2007
DATE OF DECISION:	18 April 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	leave to appeal interlocutory decision
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	051030
DATE OF DECISION UNDER APPEAL:	03/23/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
REPRESENTATION:	APPELLANT In person RESPONDENT J Eccleston, solicitor
ORDERS:	Leave to appeal against the Tribunal’s interlocutory decision refusing to revoke the appointment of a “best interests” representative, is refused.

REASONS FOR DECISION

Background to this appeal

1 NZ complained to the President of the Anti-Discrimination Board that NSW Land and Housing Corporation had discriminated against her on the ground of her disability. After investigation, the President referred the complaint to the Tribunal. On 15 December 2005, after hearing evidence from NZ, her general practitioner, and her psychologist, the Tribunal found that NZ suffers from agoraphobia and social phobia and that those conditions constitute a disability within the definition of the Anti-Discrimination Act 1977, s 4. On 23 March 2006, the Tribunal made an interim order in favour of NZ and the matter was set down for hearing as to the merits of NZ’s claim of unlawful discrimination. At the hearing on 23 May 2006, the Tribunal appointed Ms Barbara Ramjan as the representative of NZ pursuant to s 71(4) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The matter was adjourned to give the parties an opportunity to resolve the complaint.

2 Section 71(4), which deals with the representation of parties, allows the Tribunal to appoint “any other person the Tribunal thinks fit to represent the part” if the party is an “incapacitated person”. When appointing a representative for NZ, the Tribunal was satisfied that she came within the definition of an “incapacitated person” as defined in s 71(7) of the ADT Act:

(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled . .
3 The document appointing Ms Ramjan set out her role:
The role of the representative is to act in the “best interests” of the person he or she is representing.

Note: If the representative is acting as a best interests representative, then he or she cannot be dismissed by the person he or she is representing.

4 Ms Ramjan instructed lawyers to represent her. Following some settlement discussions between the parties, NZ applied to the Tribunal for Ms Ramjan’s appointment to be revoked. On 25 January 2007 the Tribunal rejected that application.

5 On 13 February 2007, NZ appealed to the Appeal Panel against that decision. As the appeal is against an interlocutory decision, it cannot proceed without the Appeal Panel’s leave: ADT Act, s 113(2A). The Appeal Panel may be constituted by one presidential judicial member when exercising an interlocutory function: ADT Act, 24A.

6 On 15 February 2007, Ms Ramjan, acting on behalf of NZ as her “best interests” representative, withdrew the discrimination complaint and by consent, the proceedings were dismissed.

Issue

7 Several issues arise. The first is whether NZ has standing to lodge an appeal in circumstances where the Tribunal has appointed a “best interests” representative to act on her behalf. The second is whether, if NZ does have standing, the Appeal Panel has jurisdiction to entertain an appeal against an interlocutory decision in circumstances where the substantive matter has subsequently been withdrawn and dismissed. Finally, if the Appeal Panel does have jurisdiction, should leave be granted for the appeal to proceed.

Decision

8 At the time NZ lodged the appeal, she did not have standing to do so because the appointment of Ms Ramjan as her representative was still operative. The appointment of Ms Ramjan as NZ’s best interests representative was made “from the date of the order until the date on which the Tribunal or the Appeal Panel hands down its final decision.” The Tribunal did not dismiss the substantive matter until 15 February 2006, two days after NZ purported to lodge an appeal. The conclusion that NZ did not have standing to lodge the appeal makes it unnecessary to consider the other two issues, but I will do so in case I am wrong and NZ did have standing to lodge the appeal.

9 While the Appeal Panel may have jurisdiction to entertain the appeal, assuming NZ has standing to bring it, there is no utility in hearing an appeal in circumstances where the underlying proceedings have been dismissed. NZ has not appealed against the decision to dismiss the substantive complaint so even if she were successful in this interlocutory appeal that would not reverse the Tribunal’s decision to dismiss the complaint. There is no point hearing and determining an appeal which can have no effect on the outcome of the proceedings below. For that reason, even if the Appeal Panel has jurisdiction, leave is refused.

Order

Leave to appeal against the Tribunal’s interlocutory decision refusing to revoke the appointment of a “best interests” representative, is refused.