Battenberg v The Union Club

[2005] NSWADTAP 20

Appeal Panel - Internal

CITATION:	Battenberg Union Club Limited (EOD) [2005] NSWADTAP 20
PARTIES:	APPELLANT Andrew Battenberg RESPONDENT The Union Club Limited
FILE NUMBER:	049055
HEARING DATES:	18/04/2005
SUBMISSIONS CLOSED:	04/18/2005
DATE OF DECISION:	05/10/2005
DECISION UNDER APPEAL:	Battenberg v The Union Club (No 2) NSWADT 285
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	adequacy of reasons - finding contrary to evidence - leave to appeal out of time - procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	011069
DATE OF DECISION UNDER APPEAL:	12/09/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Briginshaw v Briginshaw (1938) 60 CLR 336 Haines v Leves (1987) 8 NSWLR 442; Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 Kioa v West (1985) 159 CLR 550 Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463 Pettitt v Dunkley [1971] 1 NSWLR 376 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Queen v Kelly 28 SASR 271 Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 104
REPRESENTATION:	APPELLANT J Dupree, barrister RESPONDENT K Eastman, barrister
ORDERS:	1. The appeal is dismissed.; 2. If either party wishes to make an application for costs, the following directions apply:; a) Any application for costs be filed and served within 21 days of the date of this decision.; b) Any response to an application for costs be filed and served within a further 21 days. ; c) The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1997.

Introduction

1 Andrew Battenberg (the appellant) has appealed against a decision of the Tribunal which dismissed his complaints of discrimination and victimisation against the Union Club. The appellant joined the Club in 1992 and rented a suite from June 2000 to August 2001, when he was expelled. The discrimination complaints, which were brought under the Anti-Discrimination Act 1977 (the Act) relate to treatment the appellant says he was subjected to while a member of the Club during the period from 24 April 2001 to 18 July 2001. The complaints, which were on the ground of disability and perceived homosexuality, relate to three incidents which occurred during that period. Finally, the appellant complained of victimisation under s 50 of the Act. He said that the reason the Club notified him in August 2001 that his membership had ceased was because he had made a complaint to the Anti-Discrimination Board.

Jurisdiction

2 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal “on any question of law.” With leave, the appeal may extend to a review of the merits of the appealable decision. The appellant applied to the Tribunal for the appeal to be extended to a review of the merits of the Tribunal’s decision. That application is dealt with at the end of these reasons. This decision summarises the Tribunal’s reasoning and then deals with each ground of appeal.

Summary of Tribunal’s decision

3 In relation to the discrimination complaints, the Tribunal set out the matters the appellant had to prove to establish a breach of s 49O(2)(c) and /or 49ZR2(c) of the Act. In summary, those elements were identified at [3] to [8] as:

(i) the Club thought that he was a homosexual and/or he had a disability;

(ii) he was subjected to a "detriment" within the meaning of ss 49O(2)(c) and/or 49ZR(2)(c) of the Act in relation to:

- the conduct of Club President, Michael Crouch at the meetings of 24 April 2001;

- the request that his employee, Ian Humby, leave the Club;

- the directive to staff that he not be addressed as Lord Battenberg.

(iii) in the same or similar circumstances, a Club member who did not suffer from the disability/ies he did and/or who was not thought to be homosexual would have been treated more favourably ("differential treatment").

(iv) one of the reasons for that less favourable treatment was, respectively, his disability or perceived homosexuality ("causation").

4 Detriment. The Tribunal was satisfied that the conduct of the Club’s President, Michael Crouch, at the meetings of 24 April 2001 constituted a “detriment” pursuant to ss 49O(2)(c) and/or 49ZR(2)(c) of the Act. That conduct was asking the appellant to resign from the Club and requesting that his employee, Mr Humby, leave the Club. However, the Tribunal concluded that the Club’s directive to staff that he not be addressed as Lord Battenberg, did not constitute a detriment “because on the evidence available he had not established that he was entitled to that honorific in the first place.” The appellant challenged the factual basis for this finding and submitted that the Tribunal had breached procedural fairness in coming to that conclusion.

5 Disability complaint. The Tribunal found that the appellant had a disability throughout the relevant period but reasoned that if the Club did not know he had a disability at the relevant time, then “causation” could not be made out because his disability could not have been a ground for the treatment. The Tribunal was not satisfied that the appellant’s disability was so marked that it would not have gone unnoticed by a layperson. Nor was the Tribunal satisfied that the relevant employees of the Club had direct or constructive knowledge of the appellant’s disabilities at the material times. Consequently the Tribunal was not satisfied that the appellant’s disability played any part in the Club’s treatment of him. The disability complaint was dismissed for that reason. Nothing raised by the appellant in the course of the appeal directly challenged the Tribunal’s finding on this issue.

6 Homosexuality complaint. At [107], the Tribunal accepted that “the Club, and Mr Crouch in particular, perceived the Applicant to be homosexual.” The Tribunal posed the question of “causation” as whether one of the reasons Mr Crouch called on the applicant to resign and/or for Mr Humby to leave was because he thought the applicant was homosexual. The Tribunal said that in case it was wrong about the instruction to staff to cease calling the appellant Lord Battenberg not being a detriment, it would go on to consider the question of causation in relation to that matter. As a question of fact, the Tribunal found that at the meeting of 24 April, Mr Crouch did not ask him in an accusatory and derisory manner, whether he was homosexual. At [115] the Tribunal acknowledged that it is notoriously difficult, without direct evidence, to establish that a proscribed ground of discrimination played a part, however small, in a decision that resulted in a person being subjected to a detriment.

7 Having made a finding adverse to the appellant in relation to “causation”, the Tribunal nevertheless went on to consider the question of “differential treatment”. At [118] the Tribunal noted that there was no evidence of an actual comparator. In relation to how the Club would have treated a hypothetical person without a disability, or who they did not perceive to be homosexual, the Tribunal found that the Club would not have treated such a person any differently from the way they treated the appellant. The appellant made no submission that the Tribunal erred in law in relation to the finding in [118]. The Tribunal summarised the relevant evidence and came to the conclusion, at [119] that:

In our view, the Applicant has not discharged his evidentiary burden of establishing that in respect of the three incidents, considered separately or as a whole, that he was treated less favourably than a member not thought to be homosexual. It is impossible to rule out that the perception that the Applicant might have been homosexual did play some role, however small, in the way he was treated. However, we cannot be satisfied on balance that this was the case.

8 The appellant’s final complaint was that the Club had victimised him by notifying him that his membership had ceased. According to the appellant the victimisation came about because he had made a complaint of discrimination to the Anti-Discrimination Board. According to the Club, the real reason for terminating the appellant’s membership was because it had received legal advice that his membership had ceased as a consequence of his bankruptcy. The Tribunal found, as a question of fact, that the Club was not aware prior to late March 2001, that the appellant had been declared a bankrupt and that the bankruptcy had been annulled. The appellant did not submit that the Tribunal had erred in relation to its findings about victimisation.

9 Each of the appellant’s grounds of appeal is considered below.

Setting aside summons

10 Summons issue. The appellant issued three summonses returnable on Friday 6th December 2002. On the following Monday morning the Club registered its objection to the appellant having access to some of the summonsed material. One of those objections related to a claim for legal professional privilege. After hearing submissions from each of the parties and taking a short adjournment, the Tribunal gave an oral decision that certain identified documents were subject to legal professional privilege. The appellant submitted that despite his request during the course of the hearing that the Tribunal give reasons for its decision, it failed to do so. Following the adjournment, the following decision was made:

Britton: If I could just turn first to the documents that were provided in a sealed envelope for which Ms Eastman submits that they are subject to legal professional privilege. We have had the benefit of considering those documents and agree with that submission that they are documents which are properly exempt on that basis.

Dupree: could you give us reasons, please?

Britton: Well, because they are documents which provide, as far as we can see, legal advice to the committee – to a committee of the club.

Dupree: They are document – I don’t want . . .

Britton: Well, look Mr Dupree we have looked at the document. And just so we are not in the dark, looked at the document, it does contain legal advice that was provided to a committee of the club and I understand that one of your issues is whether or not confidentiality has been waived?

Dupree: I thought that was an area that you should consider, but could I submit to you properly the document should be described, the author of the legal advice if it be in the context of the definition should be properly identified. It is not, in my respectful submission, sufficient to merely say that you agree with the submission. I would ask that we be given reasons.

Britton: Well, Mr Dupree, let me be quite blunt, that is the sum total of the description that I am prepared to provide at this point. We have given it careful consideration, we believe those documents as claimed by Ms Eastman are subject to legal professional privilege. I think I outlined to you what is contained in those documents and we move on.

11 Under s 113(3) of the Administrative Decisions Tribunal Act 1997 a party may appeal to the Appeal Panel against a decision of the Tribunal:

(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.

12 The appellant was never furnished with written reasons for the decision under s 89 of the Act, because he did not request them. Furthermore, the appellant has never lodged an appeal against the Tribunal’s decision to refuse to give him access to the summonsed material. In case the appellant’s current Notice of Appeal could be construed as an application to lodge such an appeal out of time, the Appeal Panel refuses that application on the ground that it is now over two years since the decision was made. No persuasive reason was advanced as to why the appellant did not lodge an appeal during that time. For those reasons, the Appeal Panel does not have jurisdiction in relation to the Tribunal’s decision that certain documents were subject to legal professional privilege.

Summary of what the applicant had to prove

13 At [3] to [8] of its decision, the Tribunal summarised each elements that the appellant had to prove in order to establish that the Club had unlawfully discriminated against him. The appellant challenged the following highlighted statement in [3]:

To succeed in his complaints of discrimination the Applicant must, on the balance of probabilities, establish, first, that throughout the period covered by the complaint i.e. 24 April 2001 to 18 July 2001:

(i) he was thought to be a homosexual by the respondent; and

(ii) he had a disability. (Emphasis added.)

14 The Tribunal went on in the following paragraphs to list the other elements that the appellant had to prove, namely a “detriment”, “differential treatment” and “causation”. The appellant said that by using the words “throughout the period” in [3], the Tribunal had made an error of law because there is no need for the unlawful conduct to subsist throughout the period of the complaint. While that proposition is undoubtedly correct, that is not what the Tribunal said. In [3] the Tribunal was referring to one element of the complaint, that is that the appellant had a disability and/or was thought to be homosexual. The Tribunal found in favour of the appellant in relation to both these matters. At [15], the Tribunal found that “throughout the period covered by the first complaint, the Applicant had two disabilities, namely PTSD and a tremor of his hands.” At [107], the Tribunal accepted that “the Club, and Mr Crouch in particular, perceived the Applicant to be homosexual.” As this issue was decided in favour of the appellant, and the Tribunal did not say that the allegedly unlawful conduct had to subsist throughout the period, there is no error of law and this ground of appeal fails.

Failure to call Mr Foulkes

15 The appellant’s next ground of appeal was that the Tribunal erred by failing to agree to his application to call Mr Foulkes in reply. The Tribunal set out the background to this application and its reasons for refusing it at [16] to [24]:

16 The Respondent had initially filed a statement by Michael Foulkes, the Club’s Operation Manager. At the commencement of its case, Counsel for the Respondent, Ms Eastman, announced that his evidence would not be relied on. On the final day of hearing, after the close of the Respondent’s case, the Applicant applied for leave to call Mr Foulkes. That application was refused. Our reasons for that decision follow.

17 Counsel for the applicant, Mr Dupree, contended that Mr Foulkes’ evidence would rebut that given by the Respondent’s witnesses. He submitted that leave ought be granted for the following reasons: first, the interests of justice demanded that the Applicant be given the opportunity to answer a number of unspecified matters raised in the Respondent’s case; second, the Applicant had been misled by the conduct of the Respondent that it would call Mr Foulkes as his statement had been filed; third, in the discharge of its statutory duty to properly inform itself of all matters in issue, the Tribunal ought grant the application.

18 Ms Eastman explained that the Respondent decided not to call Mr Foulkes as it was apparent from the s 111(1) ruling that he was not a relevant witness to the alleged contraventions identified by the Tribunal, as relevant to its inquiry. Ms Eastman disputed that the Applicant had been misled and asserted that a party is under no obligation to call all persons whose statements it has filed. In any event, it had been open to the Applicant’s representatives to contact him and obtain a statement.

19 The Tribunal has broad power to determine its own procedure: s 73(1) of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’). It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 73(2)); it is to ensure that all relevant material is disclosed (s 73(5)(b)) and to act as quickly as practicable (s 73(5)(a)). It is uncontroversial that the Tribunal has power to grant the application sought. The issue is whether the circumstances warrant the exercise of that discretion.

20 There will be circumstances where, in compliance with the directives set out in s 73, the Tribunal should grant a last minute application of this kind. These might include where fresh and material evidence becomes available where it could not reasonably have been known to the parties at the time evidence was filed or where a self-represented party failed to appreciate the consequences of failure to comply with the directions timetable.

21 The Applicant has been represented throughout the course of the proceedings. The matter proceeded by way of directions, which gave the Applicant an opportunity to file evidence in reply. His representatives elected not to do (so). They should have been aware that there was no guarantee that the Respondent would ultimately rely on any of its filed evidence and that it was not obliged to. This was especially the case given that the Tribunal’s s 111(1) ruling significantly narrowed the matters to be determined.

22 In our view, the reason advanced for this application are somewhat inadequate. We have been told that Mr Foulkes would assist us in our inquiry but we have not been taken to any specific areas he might be asked to address. We are also told he would rebut the evidence of the Respondent’s witnesses, yet it is not clear on what basis Counsel for the Applicant formed that view. At best it seems that he has a hunch that Mr Foulkes’ evidence might assist the Applicant’s case.

23 The Tribunal’s broad inquisitorial powers do not impose upon it an obligation to inquire into every matter a party asserts might be relevant to the facts in issue. The duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present its case. That duty does not extend to acceding to every application for evidence to be admitted out of time, which a party believes might assist the Tribunal’s knowledge of its case. One of the directives in s 73 is that the Tribunal act as quickly as possible. The practical effect of granting this application would have been to require a further hearing day to be set aside.

24 For these reasons the application was not granted.

16 The Club repeated its submission to the Tribunal that the reason they did not call Mr Foulkes was because his statement related exclusively to the assault incident which occurred in June 2000. Because the Tribunal did not include that incident in the period covered by the complaint, the Club decided not to rely on his evidence. (See Battenberg v The Union Club [no.2] [2003] NSWADT 187 at [26].) The appellant submitted that because Mr Foulkes could have given relevant evidence, as he was present during some relevant discussions, the Tribunal should have allowed him to issue a summons even after the Club’s evidence had finished. According to the Club, if the appellant wanted to rely on any evidence of Mr Foulkes, it was up to him to summons Mr Foulkes to attend and give that evidence.

17 The appellant submitted to the Appeal Panel that as a matter of procedural fairness, the Tribunal should have allowed him to call Mr Foulkes because it relied on evidence relating to him. The appellant pointed to instances where other witnesses referred to Mr Foulkes, but we do not accept his assertion that the Tribunal relied on evidence relating to Mr Foulkes. For example, the fact that the Tribunal mentioned in [36] of its reasons that Mr Foulkes, along with other people, attended a meeting, does not mean that it relied on evidence relating to him. In any case, the Tribunal will not have breached the hearing rule of procedural fairness unless the evidence in question was “adverse information that is credible, relevant and significant to the decision to be made.” Kioa v West (1985) 159 CLR 550 at 628-629 per Brennan J.) The appellant did not point to any evidence relating to Mr Foulkes that came within that description. Consequently there has been no breach of the hearing rule as a result of the Tribunal’s refusal of the appellant’s application to call Mr Foulkes.

18 In addition, we agree with the Tribunal’s conclusion that it has no obligation to inquire into every matter a party asserts might be relevant to the facts in issue. Procedural fairness requires that the Tribunal ensure that each party is given a reasonable opportunity to present its case. As the Tribunal said, “That duty does not extend to acceding to every application for evidence to be admitted out of time, which a party believes might assist the Tribunal’s knowledge of its case.” We can detect no error of law in the Tribunal’s ruling on this point.

19 The appellant’s final point was that the Tribunal’s reasons at [16] to [24] were inadequate. Apart from disagreeing with the Tribunal’s conclusion and asserting that Mr Foulkes could have given relevant evidence, we cannot discern the basis for this submission and we do not accept it.

Evidence of Mr Proud

20 The appellant submitted that the Tribunal was in breach of the hearing rule of procedural fairness when it refused to allow him to call evidence from Mr Stan Proud, a member of the Union Club. At the end of the second day of hearing, the appellant’s legal representative told the Tribunal that he would be calling Mr Proud to give evidence in chief. The Club’s legal representative objected on the basis that no statement from Mr Proud had been filed despite the Tribunal’s directions that all statements be filed by 1 November 2001. The Tribunal made a decision that it would not allow the appellant to call Mr Proud because he had been afforded every opportunity to file a statement from him either in chief or in reply to the Club’s statements but had not done so.

21 The Tribunal made an oral decision on 10 December 2002 that Mr Proud could not give evidence. The appellant did not request written reasons for that decision in accordance with s 89 of the Administrative Decisions Tribunal Act 1997, nor did he appeal against that decision. Even if the current Notice of Appeal can be taken to constitute an appeal against the Tribunal’s decision out of time, that decision did not disclose an error of law. There is no obligation on the Tribunal to give a party an unlimited opportunity to present evidence, even if that evidence is potentially relevant to an issue in dispute. The appellant had a reasonable opportunity to file and serve the evidence on which he wished to rely either in chief or in reply. The Tribunal’s refusal to allow him to call Mr Proud does not constitute an error of law.

Relying on hearsay evidence

22 The appellant submitted that the Tribunal accepted hearsay evidence in relation to the conduct of Miss Lisa Ford in circumstances where it should not have made findings without hearing direct evidence from her. The relevant passages in the Tribunals decision are at [58] to -

The AMEX incident

58 This evidence was relevant to the question whether the Applicant was, at the relevant time, financial at the Club. It is also relevant more generally to the question of the credit and credibility of witnesses.

59 The Respondent’s evidence is that, on or about 3 April 2001, the Applicant signed an AMEX charge voucher for the sum of $5515. 26 and despite repeated attempts by the Club’s Financial Controller, Ms Lisa Ford, to process that authorisation, payment was declined. Mr Sprokkreeff testified that Ms Ford had told him that she had tried to contact the Applicant without success and she eventually spoke to his accountant, Mr Reynolds, who confirmed that the details of the card that she had attempted to process had been correct. Mr Reynolds authorised payment by phone using a different card number and expiry date. AMEX authorised that payment.

60 The Applicant claims that payment was declined because Ms Ford entered the wrong expiry date of his credit card on the payment voucher. He denies going in to the office to sign the voucher and claims Ms Ford must have used a “standing authorisation”, he had previously provided the Club. He claims that payment was successfully processed after Mr Reynolds supplied the correct expiry date to Ms Ford.

61 It is argued for the Applicant that the Tribunal ought to draw an adverse inference from the Respondent’s failure to call Ms Ford. As will be recalled, the Respondent elected to rely on Mr Sprokkreeff’s evidence of what he claimed Ms Ford had reported to him about this incident.

62 The documentary evidence stands at odds with the Applicant’s claim that the AMEX authorisation for $5515.26 in April 2001 was declined because of an administrative error on the Respondent’s part. The payment voucher initially used by Ms Ford (Exhibit 33 Attachment G) did not have the details of the card entered by hand, as the Applicant asserts, but by means of an imprint taken from a credit card under which his signature appeared. Notably as Exhibit 33, Attachment H makes it clear that payment was eventually processed by telephone authority given by Mr Reynolds, using his credit card, not that of the Applicant.

23 The appellant submitted that although the Tribunal is not bound by the rules of evidence, the hearsay evidence given by Mr Sprokkreeff about what Miss Ford said, should not have been admitted. This submission is misconceived because the Tribunal makes it clear at [62] that it relied on the documentary evidence to find that the AMEX authorisation was not declined because of an administrative error on the part of the Club and not on the basis of hearsay evidence. Consequently, the Tribunal has made no error of law on the basis of the admission of hearsay evidence.

Limiting time for cross-examination

24 On several occasions during the cross-examination of Mr Crouch and Mr Sprokkreeff, the Tribunal attempted to ensure that the cross-examination would be completed within a particular time frame. The appellant conceded that under s 73(5)(d) (d) of the Administrative Decisions Tribunal Act 1997, the Tribunal has power to “require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the case.” However, according to the appellant’s legal representative, he had not exhausted the questions he wanted to ask Mr Crouch and Mr Sprokkreeff and more time was needed.

25 During the cross-examination of Mr Sprokkreeff, which commenced at 10.45 am on 26 February 2003, the Tribunal asked the appellant’s legal representative on several occasions to “move on” and on one occasion to ask “one final question” in relation to a particular matter. After the cross-examination of Mr Sprokkreeff had proceeded for over four hours, the presiding member put counsel on notice that he had until 4 pm that afternoon to complete the cross examination. Counsel objected saying that he would not be able to finish in that time. The presiding member stood by her time limit saying that he was an experienced barrister and he should use the time efficiently. Counsel completed cross-examining Mr Sprokkreeff at 4.34 pm. Cross-examination of Mr Crouch commenced at 10.31 the following morning. During the course of the morning the presiding member gave counsel until 1.30 pm to complete his cross-examination. That time was extended on two occasions and cross-examination was finally completed at 1.37 pm.

26 The appellant submitted that the Tribunal displayed a “sense of urgency” in wanting him to move forward and that he felt pressure to cross-examine within a limited time frame. The Club submitted that many of the questions counsel asked in cross-examination were irrelevant or repetitive and that there was no unfairness involved in imposing time limits.

27 Section 73(5)(d) states that the Tribunal:

(d) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases

28 In our view, this provision relates to the cross-examination of parties as well as to evidence in chief. It is reinforced by the common law principle that:

A judge or magistrate has a wide discretionary power in any proceedings to contain cross-examination within proper limits and to disallow prolix or unnecessary questions. ( The Queen v Kelly 28 SASR 271 at 273 per King CJ.)

29 In Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 1040 the Court of Appeal relied on this principle to reject a submission that a Magistrate denied the plaintiff natural justice by not allowing the plaintiff to “fully” cross-examine the defendant. The Court of Appeal held that the Magistrate gave reasonable time and breadth for the cross-examination and that the Magistrate had merely restricted unreasonable questioning.

30 Similarly, in this case, having read the transcript of the cross-examination of Mr Crouch and Mr Sprokkreeff, we are satisfied that the limits the Tribunal placed on the cross-examination of these witnesses were “reasonably necessary for the fair and adequate presentation” of the case. The Tribunal was merely restricting unreasonable questioning. Furthermore the appellant’s legal representative was not able to identify a specific area of cross examination which he was prevented from pursuing. He merely said that he would have had a better opportunity to truly find out what was going on in Mr Crouch’s mind if given more time. In those circumstances, we find no error of law on this ground.

Internet inquiries

31 One of the issues in the case was whether the Club’s instruction to staff that the appellant not be called “Lord Battenberg” was a “detriment”. After the hearing had finished, the Tribunal made its own internet inquiries in relation to the appellant’s right to call himself “Lord Battenberg” or “Lord Andrew”. The material the Tribunal found on the internet was served on the parties on 17 November 2004. The Tribunal made directions that the parties reply to that material by 30 November 2004. On 29 November, the appellant wrote to the Tribunal saying that he needed 8 weeks to reply to the internet material. The appellant said “We are have been (sic) in the process of obtaining material from England to substantiate our clients (sic) use of the title and at the date of this letter the material has not yet arrived.” The Tribunal refused the request for an extension of time. The appellant did not identify the source of the material that he was waiting for, but on 30 November 2004, he filed further material in support of his claim to use the name “Lord”. That material included a letter from Elliot & Company, solicitors from the United Kingdom, who said they had been consulted by the appellant in relation to the material served by the Tribunal. The letter expressed a view about the appellant’s entitlement to use be called “Lord”.

32 A copy of a letter from Alistair Kerr, a member of the Heraldry Society of Scotland, was attached to an affidavit of the appellant’s solicitor, Salvatore Russo, dated 24 March 2004. That letter expresses a view that the appellant has a prima facie claim to be regarded as an Irish peer and to be addressed accordingly. That letter was not requested until after the appeal had been lodged. We do not know whether or not this was the material the appellant would have filed, had he been given more time. Assuming that the appellant had requested material from England, which had not arrived by 30 November 2004, we are satisfied that the Tribunal did not give the appellant an adequate opportunity to respond to the Tribunal’s material.

33 However, even assuming that the Tribunal failed to afford the appellant procedural fairness, that error made no difference to the ultimate decision. Generally, courts are reluctant to examine the question of whether a breach of the hearing rule would have made a difference to the final decision since this usually involves an investigation into the merits of the decision and because the “assumption that a hearing could have made no difference comes close in itself to a denial of natural justice” (see Mark Aronson et al, Judicial Review of Administrative Action, 3rd edn (Sydney: Lawbook, 2004), 457). It is only where a court or appeal body can determine that observance of procedural fairness would not have affected the decision without judging the merits of the decision, that it is proper for the appeal body to refuse a remedy: Nguyen v Minister for Immigration Local Government and Ethnic Affairs (No2) (1996) 68 FCR 463 at 478-79 per Merkel J.

34 In this case it is clear without going into the merits of the decision, that observance of procedural fairness would not have affected the decision. The Tribunal found that instructing staff not to call the appellant “Lord Andrew” was not a detriment “because on the evidence available he had not established that he was entitled to that honorific in the first place.” However, the Tribunal went on to find that even if it was a detriment, that treatment was not “differential treatment” or “on the ground of” the appellant’s perceived homosexuality. (See [108] and [112] to [119] of the Tribunal’s decision.) Even if the Tribunal had given the appellant extra time to provide evidence, and had been satisfied on the basis of that evidence that the appellant was entitled to be called “Lord Andrew” or “Lord Battenberg”, it would have come to the same decision on the questions of “differential treatment” and “causation” and dismissed the complaint in any event.

Onus of proof

35 In its submissions filed on 26 May 2004, the appellant said at paragraph 14, that:

It is submitted that, the Tribunal having made the findings referred to in paragraphs 1-13 above, the evidential burden shifts to the Respondent. It is for the Respondent to lead evidence that has the effect of reducing, or neutralizing the effect of the Applicant’s evidence that gave raise (sic) to the findings in the said paragraphs.

36 The findings to which the appellant was referring, were the findings of the Tribunal in Battenberg v The Union Club [no.2] [2003] NSWADT 187 when it dismissed the Club’s application to summarily dismiss the complaints as lacking in substance. The Tribunal made certain findings of fact in that decision but in relation to the reasons for the Club’s conduct, the Tribunal made it clear that it was not making any findings about those reasons, but merely deciding whether, if the evidence was accepted at its highest, the appellant could possibly substantiate a complaint under the Act.

37 On 25 June 2004, the Club responded to the appellant’s submission on onus of proof at paragraph 4:

The Applicant bears the onus of proof with respect to the substantive claim of discrimination and victimisation. The onus of proof does not shift to the respondent and the Applicant’s written submissions at paragraph 14, incorrectly state where the evidentiary burden lies.

38 The Club went on to note at paragraph 8 of its submissions that “The standard of proof is often cited as the Briginshaw test which accounts for the seriousness of the conduct alleged.” (Briginshaw v Briginshaw (1938) 60 CLR 336.) In answer to these submissions, the appellants stated, on 12 July 2004, that:

The submissions in paragraph 4 of the respondent’s submissions seems to fail to take into account the submissions made on behalf of the Applicant which is that the evidential burden shifts. It is accepted that onus of proof rests with the Applicant, however, the point is made that the tribunal, having found, in effect, a prima facie case, accepted the proofs offered by the Applicant, at that stage, as being sufficient to found the findings set out in the section 111 judgment.

It follows that, without more, it is reasonable to expect that those findings would sustain a finding that the Applicant had discharged his burden as to the requirements of proof on the ultimate question. Such that it is for the Respondent to shoulder an evidential burden to reduce the effect of the applicant’s proof by means of evidence advanced on its behalf.

39 At [110] of its decision, the Tribunal dealt with these submissions:

We must digress to deal quickly with a point argued by counsel for the Applicant. He asserts, we think wrongly, that once a case to answer is demonstrated the burden of proof is reversed. He has provided us with no authority for this proposition and it flies in the face of first principles of proof. We reject that submission. While there may be some evidentiary onus to fall on a Respondent once a case to answer is shown, the burden of proving a case on the balance of probabilities lies from first to last on the Applicant.

40 The appellant submitted to the Appeal Panel that his submission to the Tribunal was only that the evidentiary burden shifts, not that the burden of proof itself is reversed. We agree that the appellant was confining his submission to the evidentiary burden and did not say that the entire burden of proof shifted. The Tribunal appears to have misunderstood his submission to that extent. In this case the appellant, when putting his case to the Tribunal in relation to the s 111 application, discharged the evidential burden by adducing “prima facie” evidence, that is evidence that was of sufficient weight to allow the Tribunal to decide in his favour. That evidence is set out in the Tribunal’s decision in relation to the s 111 application. (Battenberg v The Union Club [no.2] [2003] NSWADT 187.) Of course, the Tribunal was not ultimately obliged to decide in favour of the applicant on the basis of this evidence, but the Club ran the risk of losing if it did not adduce any evidence. (See Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181 per Barwick CJ at 197) This is sometimes called the “provisional” burden of proof, that is the burden which is borne by the respondent on an issue after the applicant has discharged his evidential burden. (Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 per Hope and Glass JJA at 425-6.) However, in this case, the Club did adduce evidence in answer to the appellant’s evidence during the hearing on the substantive application. Consequently any misunderstanding by the Tribunal of the appellant’s submission could not have affected its findings or conclusions.

No reasons or inadequate reasons

41 In its oral submissions to the Appeal Panel, the appellant did not highlight “adequacy of reasons” as a major ground of appeal. Nevertheless, in his written submissions, the appellant set out fifteen passages from the Tribunal’s decision which he said contained no reasons or inadequate reasons. Section 89(2) of the Administrative Decisions Tribunal Act 1997 imposes a duty on the Tribunal to give reasons, either orally or in writing. Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give “adequate” reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. At common law, there is now a judicial duty to give adequate reasons: see, for example, Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. That duty appears to apply to tribunals as well as courts

42 Content of the duty to give reasons. The duty to give adequate reasons does not mean that the Tribunal has to decide every matter which is raised in argument. (R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70 per Mahoney JA)

43 We do not accept the appellant’s submission as to adequacy of reasons in relation to any of the matters raised in the written submissions. Brief reasons for that conclusion are set out below:

(a) decision in relation to access to summonsed documents on ground of legal professional privilege: see [10] to [12] above;

(b) decision re “throughout the period covered by the complaint” in [3] See [13] to [14] above;

(c) decision re “throughout the period” in [15]: see [14] above;

(d) failure to call Mr Foulkes: see [19] above;

(e) decision that it was not satisfied “to the requisite standard that Mr Crouch attacked the Applicant in the manner alleged . . .” In [83] to [88] of the Tribunal’s decision adequate reasons are set out;

(f) In relation to the first meeting on 24 April, the Tribunal states at [88] that: “Both parties assert that their respective accounts of that meeting are clear and consistent.” The appellant submits that, as a question of fact, the account of Mr Crouch was not clear and consistent. The Club submitted that Mr Crouch was consistent and clear at least in denying that he asked the appellant in an accusing and derisory manner whether he was homosexual. Even if we accept the appellant’s submission, the Tribunal was nevertheless correct when it stated that both parties “assert” that that their respective accounts are clear and consistent. The Tribunal does not make a finding as to whether the accounts were clear and consistent and is not obliged to provide any reasons in support of the parties’ assertions.

(g) finding at [63] of decision that “. . . the documentary record clearly contradicts the Applicant’s evidence . . .” There is no need for detailed reasons when the contradiction is clear on the face of the document.

(h) finding at [64] of decision that “ . . .the Amex authorisation was not declined because of an administrative error. . . “ The Tribunal set out its reasons for that conclusion in detail at [58] to [64].

(i) finding at [73] that “. . his account for the Amex transaction was unreliable . . .” The Tribunal set out the reasons for the finding in [73].

(j) finding at [74] that the Tribunal failed to give reasons for the finding “. . on four occasions payment was not honoured. . . “The Tribunal based that finding on the business records that were in evidence. That is clear from the previous paragraphs in the Tribunal’s decision.

(k) finding at [84] that “. . .on his own account those notes were not prepared until after his complaint. . . ” This is an inference drawn from the oral evidence: see [45] below.

(l) finding at [85] that “while Mr Crouch might have asked him to resign it is also possible that the resignation was not mentioned at this point. . .” The whole of [85] needs to be read to appreciate the full context in which that comment was made. The Tribunal gave adequate reasons for that finding in that paragraph.

(m) finding at [134] that “it is possible that it hurried the process along . . .” This is not a finding that part of the ratio of the Tribunal’s decision. It was merely an observation which did not form part of the reasoning process.

(n) finding at [134] that “no doubt the news that the Applicant had gone to the Board would not have been received warmly. . .” Again, this is not a finding that formed part of the ratio of the Tribunal’s decision. It was merely an observation which did not form part of the reasoning process.

(o) finding at [134] that “. . the complaint was not the real and operative cause of the Club’s decision. . . .” The Tribunal’s reasons are set out at [132] to [134] of the decision.

44 Finally, the appellant submitted that many of the Tribunal’s findings were “against the evidence and weight of evidence.” This ground does not raise a question of law. In Haines v Leves (1987) 8 NSWLR 442, Kirby P described the Court’s findings in Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 in the following terms:

In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the majority (Glass JA, with whom Samuels JA agreed) stressed that in appeals such as the present, the legislation does not allow the Court to correct errors of fact. It does not permit the Court to review even a finding of fact which is said to be perverse or contrary to the overwhelming weight of evidence or even against the evidence and the weight of the evidence. Nor may the Court review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. In all such circumstances, the Court concluded, no error of law would be shown to attract the jurisdiction of this Court. The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law.

45 It is clear from Azzopardi and from the passage quoted above, that an allegation that a finding is “against the evidence and against the weight of evidence” does not amount to a question of law. The appellant did not submit that there was no evidence to support any of the Tribunal’s findings, except the finding at [84] referring to the appellant, that “on his own account those notes were not prepared until after his complaint had been referred to the Tribunal by the Board.” The notes the Tribunal was referring to were handwritten notes that the appellant says he made of his conversation with Mr Crouch on 24 April. He did not mention these notes in his statement but in oral evidence he said he prepared the notes for his solicitor, Joe Russello who was then acting for him in relation to the discrimination complaint. It appears that the finding at [84] comes from an answer the appellant gave in cross examination about the handwritten document. The relevant parts of the transcript are set out below:

Eastman: This handwritten document says, “Attention Joe” doesn’t it?

The Witness: That’s right

Eastman: An Joe Russello is a solicitor employed by Clinch Neville Long, isn’t he?

The Witness: He was employed – he was dealing in the assault, and he was the one that was getting me to do the notes, and I was giving them to him as I did them.

Eastman: and Joe Russello was not acting for you in relation to the discrimination complaint?

The Witness: Yes, he was.

Eastman: But not until after the complaint had been lodged on 17 July, is that right?

The Witness: I had Bilinsky acting in regards to that and all the details about all those type of family matters. Joe Russello was acting for me over the assault and also he was acting for me with the Anti-Discrimination because the – sorry, when I . . legal representation, it was only when I had to come to the tribunal that we needed it.

Eastman: And so when you wrote these notes, “Attention Joe”, the purpose of writing these notes were to assist your solicitor in relation to legal proceedings that you were involved in. Is that right?

The Witness: Yes, he was assisting me in what I needed to do.

Eastman: Well, I press the objection on the basis that it is clear that these notes are not a contemporaneous record of conversation that occurred in early April.

46 At [75] of the decision, the Tribunal refers to the appellant’s later evidence that he had written the notes one or two days after the event. Although it may have been more accurate for the Tribunal to say that it inferred from this exchange that the notes were not prepared until after his complaint had been referred to the Tribunal, there was evidence for that substantive finding and no error of law is disclosed.

Extension to the merits

47 Section 113(2) allows the Appeal Panel to extend an appeal to a review of the merits of the appealable decision. The Appeal Panel does not normally give leave unless a question of law had been established (Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [4]) but there may be other circumstances justifying such an extension. The appellant highlighted twenty-six separate examples of the Tribunal making findings that were against the evidence or the weight of evidence. Many of those examples relate to questions of credibility (in particular the credibility of Mr Sprokkreeff) or questions which witnesses’ evidence should be preferred. Essentially, the appellant submitted that the Tribunal should have accepted his version of events. None of these examples persuade us that the Tribunal has gone about the fact finding process in such an unorthodox way that leave should be granted to extend the appeal to the merits of the decision.

Orders

The appeal is dismissed.

48 If either party wishes to make an application for costs, the following directions apply:

1. Any application for costs be filed and served within 21 days of the date of this decision.

2. Any response to an application for costs be filed and served within a further 21 days.

3. The issue of costs, if any, will be determined “on the papers” pursuant to s 76 of the Administrative Decisions Tribunal Act 1977.