Bentley v Coleman (EOD)

[2002] NSWADTAP 38

Appeal Panel

CITATION:	Bentley v Coleman (EOD) [2002] NSWADTAP 38
PARTIES:	APPLICANT Wayne Bentley RESPONDENT Wendy Coleman
FILE NUMBER:	029026
HEARING DATES:	18/11/02
SUBMISSIONS CLOSED:	11/18/2002
DATE OF DECISION:	11/22/2002
DECISION UNDER APPEAL:	Coleman v Bentley [2002] NSWADT 87
BEFORE:	Hennessy N - Magistrate (Deputy President); Connelly Janice - Judicial Member ; Pun A - Member
CATCHWORDS:	adequate notice
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	011040
DATE OF DECISION UNDER APPEAL:	05/28/2002
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
CASES CITED:	Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 R v London County Quarter Sessions Appeals Committee Ex parte Rossi [1956] 1 QB 682 R v Kensington and Chelsea Rent Tribunal Ex parte McFarlane [1974] 1 WLR 1486 Cameron v Cole (1943) 68 CLR 571 De Verteuil v Knaggs [1918] AC 557
REPRESENTATION:	In person C Burge, counsel
ORDERS:	Appeal dismissed

1 On 28 May 2002, the Tribunal ordered that Ms Coleman’s complaint of sexual harassment under the Anti-Discrimination Act 1977 (AD Act) against Mr Bentley was substantiated. The Tribunal went on to order that Mr Bentley pay Ms Coleman $10,352.40 within 21 days of the date of the decision. Mr Bentley did not appear at the hearing before the Tribunal and he has now appealed against that decision to the Appeal Panel.

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.

3 As a threshold question, the Appeal Panel must be satisfied that the appeal raises a question of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. The approach that the Tribunal has consistently adopted in relation to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.

4 We have adopted this approach in the present case.

Notice of Appeal and Reply

5 In the Notice of Appeal filed on 12 June 2002, Mr Bentley wrote that:

I was not notified personally so therefore the decision was made with one side of this story, that being Wendy Coleman’s story.

At no stage did I sign a postal delivery. I only found out about this through Macquarie Radio News 28.5.02 3 pm and again 9.05.02 Sydney Telegraph Newspaper.

I am not sure of the error of law. I just ask for myself to be able to tell my side of this story.

6 Being unrepresented, Mr Bentley did not articulate the error of law on which he relies. If the Tribunal has made any error, it can only be that it has failed to afford Mr Bentley procedural fairness. One aspect of procedural fairness is the giving of adequate notice of the hearing.

7 In her reply to the Notice of Appeal, Ms Coleman stated, in part, that:

In evidence before the Tribunal was a postal delivery notice apparently signed by the appellant. Further , the Tribunal executed service of process at the appellant’s last known address, which happens to be the postal address listed on the Notice of Appeal.

The Tribunal was satisfied that all reasonable efforts at informing the appellant of the proceedings at first instance had been carried out. Further, affidavits were in evidence before the Tribunal that documents were left at the appellant’s address by a process server appointed by the Tribunal.

On balance, the appellant was aware of the proceedings at first instance. He simply chose to ignore them and, upon judgment being entered against him, now wishes to ventilate the very issues which he chose to ignore.

8 In the reasons for decision, at paragraphs [3] to [6] the Tribunal set out the evidence on which it decided to proceed to hear the matter in the absence of Mr Bentley:

The Board wrote to Mr Bentley on the following dates; with the following responses:

19 August 1999 Letter returned to Board marked 'no such street number'

22 November 1999 Letter returned to Board marked 'unknown at this address'

9 June 2000 Letter returned to Board marked 'refused'

9 April 2001 Letter posted to Mr Bentley on 10 April 2001. Australia Post has confirmed that Mr Bentley signed for receipt of the letter on 11 April 2001.


As at the date of referral to the Tribunal the Board had not received a response from Mr Bentley.

On 7 June 2001 the complaint was referred to the Equal Opportunity Division of the Administrative Decisions Tribunal under s94(1) of the Anti-Discrimination Act.

On 10 September the Tribunal sent a letter to Mr Bentley informing him of the hearing date of 22 October 2001 by registered post. There was no response. (See exhibit 1).

Further, on 30 October 2001 Mr Jeffrey Edwards a licensed Commercial Agent delivered a letter to Mr Bentley at the same address in Narellan Vale informing him of the adjourned date of 5 November 2001. On 31 October 2001 Mr Edwards confirmed with a neighbour that Mr Bentley lives at that address. (See Exhibit 6, 2 affidavits).

9 Section 73(2) of the ADT Act states that:

The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

10 The rules of natural justice are now commonly known as the rules of procedural fairness. One element of those rules is that parties be given adequate notice of the hearing. The purpose of notice is to allow participation in the hearing. The notice must advise the time, date and location of any hearing. (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715 (Wills J) The ADT Act contains express requirements as to notice in s 138:

(1) For the purposes of this Act, a notice or document may be given to a person (or a notice or document may be served on a person):
(a) in the case of a natural person—by:
(i) delivering it to the person personally, or
(ii) leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document, or
(b) in the case of a body corporate—by leaving it at, or by sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate, or
(c) in the case of an administrator—by leaving it at, or by sending it by pre-paid post to:
(i) the head of the government agency that administers the enactment under which the decision concerned was made, or
(ii) if a provision of the regulations or any enactment prescribes the holder of a particular office as a person on or to whom notices may be served under this Act in relation to a class of decisions in which that decision is included—the holder of that office.
(2) A notice or other document may be served on the Tribunal by leaving it at, or by sending it by post to (or a document that is required or permitted to be lodged with the Tribunal may be lodged at):
(a) the office of the Registrar, or
(b) if the Registrar has more than one office, any one of those offices.
(3) Nothing in this section affects the operation of any provision of any law or the rules of a court authorising a document to be served in a manner not provided for by this section.
(4) Despite subsections (1)–(3), the rules of the Tribunal may:
(a) provide for additional means of serving, giving or lodging any notice or document, and
(b) provide that a notice or document of a class specified by the rules be served, given or lodged only in the manner prescribed by the rules.

11 There is nothing in the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 which provides any additional means of serving, giving or lodging any notice or documents.

12 In summary, the statutory provision states that service of a notice of hearing can be effected by leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document. Even where the legislative requirements have been satisfied, it may be necessary for a Tribunal to stop hearing a case or to re-open a case if the Tribunal learns that notice has not been received. (See R v London County Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682 and R v Kensington and Chelsea Rent Tribunal; Ex parte McFarlane [1974] 1 WLR 1486).

Evidence

13 Complaints of discrimination against Mr Bentley were referred by the President of the Anti-Discrimination Board (ADB) to the Tribunal on 4 June 2001 pursuant to s 94(1) of the Anti-Discrimination Act 1977 (AD Act). The President provided Mr Bentley’s address in that report and noted that he had written to Mr Bentley on four occasions: 19 August 1999; 22 November 1999; 9 June 2000 and 9 April 2001. The first letter was returned marked “no such street number.” The second letter was returned marked “unknown at address.” The third letter was returned marked “refused.” On the last occasion the President registered the letter so as to ensure that Mr Bentley had to sign for receipt of it himself. That letter was posted on 10 April 2001. Australia Post confirmed that Mr Bentley signed for receipt of the letter on 11 April 2001. At the time the President of the ADB referred the complaint to the Tribunal, he had not received a response from Mr Bentley.

14 The Tribunal attempted to contact Mr Bentley on several occasions to organise a case conference. When there was no response, the Tribunal set the matter down for hearing. On 10 September 2001, the Tribunal sent a letter dated 19 September 2001, addressed to Mr Bentley by registered post. A staff member of the registry gave evidence at the hearing that she presumed that the date of 19 September 2001 was a “typo” because “we have it initialled here in handwriting that it was actually sent on 10 September 2001.” That letter advised Mr Bentley that the matter was listed for hearing on 22 October 2001 at 10 am and set out the venue for the hearing. The letter also advised that if Mr Bentley did not attend, “the Tribunal may make orders against you.” There was no response to this letter and Mr Bentley did not appear at the Tribunal on 22 October 2001. The matter was part heard on that day and adjourned to 5 November 2001.

15 On 30 October 2001, Mr Jeffrey Edwards, a licensed Commercial Agent, delivered a letter to Mr Bentley’s address informing him of the next hearing date. Mr Edwards served the letter by placing it in the letter box. Mr Edwards knocked on the door of the house that corresponded with the address he had been given and asked an adult female whether Mr Bentley lived at that address. The female said “He doesn’t live here.” Mr Edwards asked “Where can I contact Wayne Bentley?” The female said “He moved out a year ago. I don’t know where he is.” Mr Edwards said “I left a letter for him yesterday.” The female said “I’ve sent it back. He doesn’t live here.”

16 Mr Bentley and his partner Ms Miller gave oral evidence at the hearing before the Appeal Panel. Mr Bentley gave his present address as the same address at which both the President of the ADB and the Tribunal had sent or served notices on previous occasions. Mr Bentley’s evidence was that he was not notified of any hearing before the Tribunal and that the first he time he heard of the outcome was when it was broadcast on the radio.

17 Mr Bentley said that he has been living at his present address for 5 ½ years apart from a period of about 6 months “when all this was happening.” He said that he moved out with a friend but he could not remember the friend’s family name or the number of the street in which he lived. He said he moved out in the middle of the year 2001, but he cannot remember the exact date. He said he thinks he had returned before Christmas 2001, but again, he could not remember exactly.

18 Mr Bentley gave evidence that he had not been in touch with his partner during the entire period of his absence, apart from one phone call about access to his child. He said that he had access to his child for day visits and that a friend, Kelly Mains, had transported the child to and from his partner’s residence. Mr Bentley said he gave money to Ms Mains to pass on to Ms Miller during the period of his absence.

19 Mr Bentley said that he made no arrangements whatsoever in relation to his mail during the period of absence and he did not receive any mail that had been addressed to his previous residence during that period. In particular he said he did not receive a letter dated 19 September 2001 from the Tribunal, nor letters left in his mail box on 30 or 31 October 2001.

20 Ms Miller gave evidence that she has been living at the address in question for 4 years and that Mr Bentley has been living with her except for a period of 8 or 9 months from just prior to Christmas 1998 until some time in 1999. Ms Miller said that she asked Mr Bentley to leave and not to contact her. She said that she did not know his address when he moved out and that he put money into a bank account but that she did not receive money from Mr Bentley via a third party during that time. Ms Miller said that Kelly Mains is Mr Bentley’s former wife and that Ms Mains did not contact her or give her any money when Mr Bentley was living away from the home.

21 Ms Miller said that she and Mr Bentley have a 2 year old daughter who was born on 23 May 2000. According to Ms Miller, their daughter had not been born when she and Mr Bentley separated. Later in her evidence, Ms Miller said that Mr Bentley was away when their daughter was born but that he returned when she was about 5 or 6 months old. Ms Miller said that Mr Bentley had no contact with either their daughter or Ms Miller’s son from a previous marriage, during the period in which they were separated.

22 Ms Miller was aware that various people were trying to contact Mr Bentley but she said she returned his mail to the Post Office. She received the notice placed in her letter box on 30 October 2001 but took it to the Post Office and told them that Mr Bentley was not known at that address.

Findings of fact

23 We are satisfied that neither witness was telling the whole truth to the Tribunal. Our conclusion is based primarily on several gross inconsistencies between the evidence of Mr Bentley and Ms Miller. These inconsistencies relate to the period in which Mr Bentley was allegedly absent and the arrangements in relation to access and the payment of money during that period. In addition, Mr Bentley failed to provide detail about matters which he would have known had he separated from his partner for six months last year. Those details include the full name and address of the person he stayed with and whether or not he had returned by Christmas 2001. While it is possible that Mr Bentley was living away from home for a period during the last five years, we find that he was living at home in October and November of 2001. During this period Mr Bentley either returned mail from the Tribunal to the Post Office himself, or instructed Ms Miller to do so.

24 We are comfortably satisfied that Mr Bentley deliberately chose not to open mail from the Tribunal hoping that, by doing so, he could avoid any consequences of proceedings in the Tribunal. Mr Bentley appealed against the Tribunal’s decision in an effort to have the matter re-heard after he discovered that the Tribunal had heard the matter in his absence and ordered him to pay over $10,000 in damages.

Submissions

25 Mr Bentley’s only submission was “I didn’t receive anything. I am here today.” Mr Burge, on behalf of the respondent to the appeal, submitted that the Tribunal did all that it reasonably could have done to notify Mr Bentley of the hearing dates.

Appeal Panel’s decision

26 The Tribunal complied with the statutory requirements as to notice by sending Mr Bentley a registered letter in relation to the first hearing date and by leaving notice of the second hearing date at the residential address of Mr Bentley which was last known to the Tribunal. While it is not a mandatory requirement of procedural fairness that notice must be received, procedural fairness may demand that a party be given actual notice of a hearing date. (Cameron v Cole (1943) 68 CLR 571 at 589 (Rich J), 600 (McTiernan J) and 604 (Williams J).) In a case where the person obstructs service, actual notice may not be required. (De Verteuil v Knaggs [1918] AC 557 at 560 -561.)

27 In this case Mr Bentley did obstruct service. It was Mr Bentley’s own actions in deliberately returning mail from the Tribunal to the Post Office unopened or instructing Ms Miller to do so, which meant that he did not know the actual hearing dates. In all the circumstances of this case, we are satisfied that Mr Bentley was given adequate notice of the hearing dates and that there has been no breach of procedural fairness.

Order

28 Appeal dismissed.