Chi v Coles Supermarket Australia Pty Limited (EOD)

[2006] NSWADTAP 3

Appeal Panel - Internal

CITATION:	Chi v Coles Supermarket Australia Pty Limited (EOD) [2006] NSWADTAP 3
PARTIES:	APPELLANT Johny Chi RESPONDENT Coles Supermarket Australia Pty Limited
FILE NUMBER:	049056
HEARING DATES:	21/10/2005
SUBMISSIONS CLOSED:	10/21/2005
DATE OF DECISION:	02/08/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Needham J SC - Judicial Member; Pan H - Non Judicial Member
CATCHWORDS:	consent orders - setting aside - deed of release - operation of - leave to appeal interlocutory decision
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031038
DATE OF DECISION UNDER APPEAL:	12/01/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Adamopolous v Olympic Airways SA (1991) 25 NSWZLR 25 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Dairy Farmers Cooperative Milk Ltd v Acquilina (1963) 109 CLR 458 Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Drane v South Sydney City Council [2000] NSWADT 89 Harvey v Phillips (1956) 96 CLR 235 Licul v Corney (1976) 180 CLR 212; Paino v Hofbauer (1988) 13 NSWLR 193 Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26 Roseman (No 2) v United Bonded Fabrics Pty Limited [2000] NSWADT 152; Sebastian v Rail Infrastructure Corporation and Ors; [2005] NSWADT 281; Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No 2] (1990) 21 NSWLR 200 Symonds v Vass & Ors [2003] NSWSC 170 Xu v Sydney West Area Health [2006] NSWADT 3
REPRESENTATION:	APPELLANT In person RESPONDENT K Eastman, counsel
ORDERS:	1. Leave to appeal against interlocutory order refused; 2. Tribunal’s decision to dismiss the complaints is affirmed; 3. If either party wishes to apply for costs, an application together with written submissions in support of the application is to be filed and served within 21 days of the date of this decision. If either party wishes to respond to an application for costs, written submissions are to be filed and served within a further 21 days. The Appeal Panel will then determine any application for costs on the papers in accordance with s 76 of the Administrative Decisions Tribunal Act 1997

Introduction

1 On 1 December 2004 the Tribunal dismissed Mr Chi’s complaint of race discrimination against Coles Supermarket Australia Pty Ltd (Coles). Those complaints were made under the Anti-Discrimination Act 1977 (AD Act). The Tribunal made that order because Mr Chi told the Tribunal that he wanted to withdraw his complaint after coming to an agreement with Coles that settled the matter. Mr Chi has appealed to the Appeal Panel against the Tribunal’s decision. Mr Chi submitted, among other things, that the Tribunal failed to provide him with an appropriate interpreter, that it denied him procedural fairness and forced him to settle the matter. Coles submitted that the Appeal Panel does not have jurisdiction to hear the appeal because the Deed of Release signed by the parties operates as a bar to the appeal. Coles maintained that even if the Tribunal has jurisdiction, the order it made was a consent order and there needs to be exceptional circumstances, which do not exist in this case, before a consent order can be set aside. Finally, Coles submitted that even if the Tribunal has jurisdiction to hear the merits of the appeal, the Tribunal’s decision does not disclose any error of law.

Appeal Panel’s jurisdiction

2 Under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act), Mr Chi may appeal to the Appeal Panel “on any question of law.” If the Appeal Panel grants leave, an appeal may extend to a review of the merits of the appealable decision. Under s 113(2A) an appeal against an interlocutory decision cannot proceed without the Appeal Panel’s permission.

Procedural history

3 Before examining the issues which arise in this appeal, we will outline the events leading up to and including the first day of the hearing before the Tribunal on 1 December 2004. On 14 March 2003, the President of the Anti-Discrimination Board referred Mr Chi’s complaint of race discrimination to the Tribunal. As is the Tribunal’s usual practice, a case conference was held with the parties. After that, mediation was attempted and, when that was not successful, the matter was set down for hearing. That hearing date was vacated and further preliminary hearings took place on the question of whether a summons should be issued. The matter was finally set down for hearing on 1, 2 and 3 December 2004.

4 After the Presiding Member raised some preliminary issues, she asked Mr Chi whether he was prepared to consider a compromise to end the matter. Mr Chi said that he was. Coles also agreed to have some settlement discussions but requested that an independent person attend either as a witness or a mediator. The Tribunal then arranged for a mediator to come to the Tribunal. The mediator facilitated a mediation process during the afternoon in accordance with Part 4 of Chapter 6 of the ADT Act. A Mandarin interpreter also attended and, following the mediation, the interpreter accompanied Mr Chi to the Legal Aid Commission to obtain independent legal advice in relation to the Deed of Release. Both parties then signed the Deed.

5 The Tribunal reconvened late in the afternoon of 1 December 2004. The Presiding Member said to Mr Chi “You’ve come to an agreement with the respondent that settles the matter today?” Mr Chi replied, “Yeah correct.” The solicitor for Coles advised the Tribunal that the parties sought, by consent, that the matter be dismissed with no order as to costs. The Tribunal then checked with Mr Chi that he wished to withdraw his complaint. Mr Chi answered, “Yeah correct.” The Tribunal then said:

On the basis that the complaint is withdrawn then I dismiss this matter before the Tribunal today. In accordance with the agreement of the parties I make no order as to costs.

6 Jurisdictional and procedural issues. Several preliminary issues arise for consideration. They are as follows:

(a) Is the Tribunal’s decision to dismiss the complaint an “appealable decision”?

(b) If so, was that decision an interlocutory decision or a final decision?

(c) If it was an interlocutory decision, should the Appeal Panel give its permission for Mr Chi to appeal against that decision?

(d) Is the Deed of Release admissible in evidence?

7 Substantive issues. If leave is granted for Mr Chi to appeal, the two substantive issues that arise are as follows:

(a) If the Deed of Release is admissible, does it operate as a bar to the bringing of the appeal?

(b) If it does not operate as a bar, should the consent orders made by the Tribunal be set aside?

8 Other issues. Mr Chi also raised other issues in his grounds of appeal including alleged breach of procedural fairness, refusal of the Tribunal to grant him an adjournment, the absence of an interpreter for part of the hearing and the fact that he did not have any legal representation. To the extent that these issues are relevant to the question of whether or not leave should be granted or to the substantive issues, they will be dealt with in that context. We will also explain why many of the issues Mr Chi raised are not relevant to any question which arises in this appeal.

Is the decision to dismiss an “appealable decision”?

9 A party may appeal to the Appeal Panel against an “appealable decision”. An “appealable decision” is defined in s 113 of the ADT Act to mean:

“...a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:
(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part

10 Proceedings under the Anti-Discrimination Act 1977 (AD Act) are proceedings for an original decision. (See s 7 of the ADT Act) The relevant enactment is the AD Act. Section 118 (as it then was) states that:

An order or other decision made by the Tribunal pursuant to this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.

11 The right of appeal to the Appeal Panel is restricted to orders or other decisions made “pursuant to this Act”, that is, pursuant to the AD Act. There is no right of appeal to the Appeal Panel from an order or decision made under the ADT Act. The Tribunal did not specify the provision under which it was dismissing the complaint. The Tribunal may have dismissed the complaint under s 111(1A) (as it then was) of the AD Act which states that:

The Tribunal may dismiss a complaint if satisfied that the person ... does not wish to proceed with the complaint.

12 Alternatively, the Tribunal may have dismissed the complaint under s 73(5)(g) of the ADT Act. That provision states that the Tribunal “may dismiss at any stage any proceedings before it if the applicant withdraws the application to which to proceedings relate”. If the decision was made under s 73(5)(g) it is not an appealable decision whereas if it was made under s 111(1A) of the AD Act it is an appealable decision. We accept, for the purposes of this appeal, that the decision was made under s 111(1A) of the AD Act and is therefore an appealable decision.

Was the decision interlocutory or final?

13 The next question is whether the Tribunal’s decision to dismiss the complaint by consent was an interlocutory or a final decision? That question is relevant because under s 113(2A) of the ADT Act, a party must obtain permission from the Appeal Panel before proceeding with an appeal against an interlocutory decision. Whether a judgment is final, as distinct from interlocutory, depends on whether the judgment finally determines the rights of the parties. (See Licul v Corney (1976) 180 CLR 212 at 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248.) The Tribunal did not determine the rights of the parties in this case. It merely gave effect to Mr Chi’s request to withdraw his complaint. The conclusion that the dismissal of a complaint without determining the substantive issues is an interlocutory decision is supported by s 24A of the ADT Act. That provision defines “interlocutory function” to include the making of any order or other decision by the Tribunal in proceedings in respect of summary dismissal. (See also Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [No 2] (1990) 21 NSWLR 200 and Symonds v Vass & Ors [2003] NSWSC 170.) Although the Tribunal’s order was made by consent, rather than on the application of Coles, we are satisfied that the Tribunal’s decision was an interlocutory decision and that the Appeal Panel’s permission is required before the appeal can be entertained.

Should permission be granted to appeal against the Tribunal’s decision?

14 Coles submitted that leave should not be granted for Mr Chi to appeal against the Tribunal’s decision. Coles relied on the Federal Court decision in Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 where that Court said, in similar circumstances, that leave should not be granted unless:

(a) in all the circumstances the decision is attended with sufficient doubt to warrant its reconsideration on appeal; and

(b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

15 According to Coles, the Tribunal’s decision does not satisfy either of these criterion. Coles also submitted that the terms of the Deed of Release, which explain the circumstances in which Mr Chi withdrew his complaint, make it plain that he would not suffer any injustice if leave were refused.

16 In Xu v Sydney West Area Health [2006] NSWADT 3 at [12]-[14], I examined some of the case law relating to the granting of leave against interlocutory decisions:

12 Section 101(2)(e) of the Supreme Court Act 1970 provides that: “An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order . . .” An order granting or dismissing an application for summary judgment is an interlocutory order: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. . . . The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: see Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 175. Nevertheless, the general rule is that the discretion to grant leave to appeal from an interlocutory decision should only be exercised where there are substantial reasons for doing so: Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364.

...

14... When hearing applications for leave to appeal from decisions by Federal Magistrates summarily dismissing discrimination complaints, the Federal Court has applied the following principles:

(i) generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9;

(ii) where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8];

(iii) to amount to a substantial injustice, the complaint must have some prospect of success including, where relevant, some evidence that at least one of the reasons for the treatment about which he or she complains was a ground of discrimination, such as race: Ugur v NSW Police Service [2005] FCA 48 Emmett J at [19] and [20]; Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [45];

...

17 In this case, the Tribunal’s decision affected Mr Chi’s substantive interests as opposed to matters of practice or procedure. Two other factors relevant when considering whether to grant leave are whether refusing leave would amount to a substantial injustice and the prospects of success of Mr Chi’s appeal. It is not possible for us to make findings on either of these matters until we have considered the admissibility of the Deed and examined the merits of Mr Chi’s appeal. A decision on whether or not to grant Mr Chi leave to appeal must be made in the light of these and other matters. Consequently, we will postpone making a decision on whether or not to grant leave until we make findings about those matters.

Admissibility of the Deed of Release

18 The first substantive question is whether or not the Deed of Release should be admitted into evidence. The relevance of that issue is twofold. Firstly, the amount of any settlement that Coles agreed to pay Mr Chi is relevant to the question of whether he would suffer a substantial injustice if leave was not granted to proceed against the Tribunal’s interlocutory decision. Secondly, Coles submitted that the Deed of Release operates as a bar to the appeal. If the Deed is not admissible in evidence, then we will be unable to decide whether the terms of the Deed prevent Mr Chi from bringing this appeal.

19 In previous decisions, the Tribunal has taken into account the terms of Deeds of Release and concluded that those terms operate as a bar to proceedings before the Tribunal. (Roseman (No 2) v United Bonded Fabrics Pty Limited [2000] NSWADT 152; Drane v South Sydney City Council [2000] NSWADT 89 (6 July 2000.) The Tribunal did not consider the question of the admissibility of the Deed in either of those cases. The provision which casts doubt on the admissibility of the Deed of Release is s 107(5) of the ADT Act. Section 107 of the ADT Act deals with the issue of privilege in “mediation sessions”. There was no dispute that the parties participated in a “mediation session” within the meaning of that term in the ADT Act on the afternoon of 1 December 2004. Section 107(5) and (6) state that:

(5) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body .

(6) Subsections (4) and (5) do not apply with respect to any evidence or document:

(a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or

(b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 108 (c).

20 These provisions are inconsistent with the provisions of s 105(1), (2) and (3) which provide that:

(1) The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session.

(2) However, the Tribunal cannot make an order under subsection (1) unless it is satisfied that the agreement or arrangement is in the best interests of the person whose interests are considered by the Tribunal to be paramount.

(3) This Part does not affect the enforceability of any agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session.

21 In Sebastian v Rail Infrastructure Corporation and Ors [2005] NSWADT 281, the Tribunal analysed the provisions of s 105 and s 107 of the ADT Act and concluded that there was a direct conflict between the terms of s 105(1) and (3) and those of s 107(5). Rather than reading s 107(5) literally, the Tribunal concluded that s 107(5) must be read in such a way that it fits within the overall scheme of the AD Act. The Tribunal pointed out at [64] that there is an important difference between preventing evidence from being given about what took place during the mediation process and permitting an agreement which was the product of that process to be used in evidence in subsequent court or tribunal proceedings concerned with enforcement of that agreement. We agree with the Tribunal’s reasoning in that case. That reasoning supports our conclusion that the Deed of Release is admissible in evidence before the Appeal Panel.

22 The amount of any settlement that Coles has agreed to pay Mr Chi is relevant to the question of whether he would suffer a substantial injustice if leave was not granted to proceed against the Tribunal’s interlocutory decision. Having examined the Deed of Release, we are satisfied that the Deed provides for Mr Chi to receive substantial financial compensation if his complaint is dismissed. On that basis, he would not suffer a substantial injustice if leave is not granted for him to appeal against the Tribunal’s decision to dismiss his complaint.

Does the Deed of Release operate as a bar to the bringing of the appeal?

23 We turn now to the substantive issues. These issues are relevant both to the question of whether leave should be granted and, if leave is granted, to the question of whether the appeal should succeed. Clause 7(b) of the Deed states that Coles “...may plead this Deed as a bar to any claim or proceeding that arises out of or relates to any matter referred to in this Deed.” The Tribunal has jurisdiction to adjudicate on the defence raised by Coles pursuant to the Deed. (See Sebastian v Rail Infrastructure Corporation & Ors [2005] NSWADT 281 at [43] to [50] and Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26 at 31A-B.) In our view, the Deed does operate as a bar to these proceedings because the appeal arises from the circumstances defined on page 4 of the Deed.

Setting aside consent orders

24 Coles’ alternative submission was that even if the Deed of Release does not operate as a bar to the proceedings, the Tribunal’s order to dismiss Mr Chi’s complaints was a consent order. The circumstances in which a consent order may be set aside were considered by the High Court in Harvey v Phillips (1956) 96 CLR 235 at 244. In that case the High Court approved the statement of Lindley LJ in Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273 at 280, where his Lordship said:

... to my mind, the only question is whether the agreement upon which the consent order was based can be invalidated or not. Of course, if that agreement cannot be invalidated the consent order is good.

25 Mr Chi has not sought to set aside the Deed of Release in a court of appropriate jurisdiction. Nor did he submit in his Notice of Appeal, that the Deed of Release was invalid. Where the underlying contract could not be set aside or varied, the circumstances would need to be exceptional before the consent orders would be set aside: Singh v Secretary, Department of Family and Community Services [2001] FCA 1281 and Paino v Hofbauer (1988) 13 NSWLR 193. The Appeal Panel would need evidence that Mr Chi was coerced or at least unduly influenced to sign the Deed of Release before setting aside the Tribunal’s consent orders.

26 Mr Chi submitted both directly and indirectly that he did not understand the effect of the Deed and that he was coerced into signing it. Mr Chi made four submissions which may be relevant to that issue. They are that:

(a) the Tribunal coerced Mr Chi into signing the Deed of Release;

(b) the Tribunal failed to provide an interpreter;

(c) Mr Chi did not have legal representation; and

(d) the Tribunal refused his application for an adjournment and refused to issue a summons that he requested be issued.

27 Mr Chi quoted several passages from the transcript to support his submission that the Tribunal had pressured him into engaging in the mediation and ultimately settling his case. Mr Chi insisted that the Tribunal had found him to be a “difficult” person, that the Tribunal were unfairly refusing to allow him further time to arrange for his witnesses to attend the hearing and that he would lose the case if the Tribunal could not decide who to believe. Mr Chi also said that the Tribunal was hinting that he would be in “trouble” if he did not settle the matter and that he had no alternative but to engage in mediation and settle the case.

28 We suggested to Mr Chi in the course of the hearing that he had misinterpreted many of the Tribunal’s comments. In our view, the Tribunal was trying to explain to him, in plain English, that he has the onus of proving his case and that that onus is a “hurdle” or “difficulty” he had to meet. Those comments were made in the context of discussing the potential advantages of a mediated outcome. The Tribunal did not say that Mr Chi was a difficult person. Mr Chi attempted to explain to the Appeal Panel why Coles, and not he, was the main “difficulty” in the case. We did not admit any fresh evidence from Mr Chi in relation to this matter because the conduct of Coles or the strength of their defence were not matters about which the Tribunal made any findings. Mr Chi also alleged that Coles had given false information to the Tribunal. Again, as the Tribunal made no finding on liability, we did not admit any of this material into evidence and note that it is irrelevant to any arguable ground of appeal. On our reading of the transcript, the Tribunal did not coerce Mr Chi into signing the Deed of Release.

What was the effect of a failure to provide an interpreter?

29 At the beginning of the hearing on 1 December 2004, Mr Chi told the Tribunal that the interpreter spoke Cantonese, not Mandarin, and he needed a Mandarin interpreter. The Tribunal arranged for a Mandarin interpreter to attend but we understand that the interpreter did not arrive until after the Tribunal had adjourned to allow the parties to participate in mediation. The Tribunal dealt with several preliminary issues without a Mandarin interpreter. Mr Chi participated in those discussions in English. Mr Chi submitted that the failure to have a Mandarin interpreter was a denial of procedural fairness and made him “confused and frightened”.

30 Even if Mr Chi misunderstood what the Tribunal was saying during preliminary discussions because of the absence of a Mandarin interpreter, that does not amount to coercion by the Tribunal to sign the Deed of Release. A Mandarin interpreter was present throughout the mediation process and also when Mr Chi obtained independent legal advice from an officer from the Legal Aid Commission about the effect of the Deed. Although there is no evidence as to whether or not the interpreter was present when the Tribunal made the consent orders, it appears that he was present. Even if he was not present at that time, Mr Chi did not tell the Tribunal that he did not understand what he was being asked or that he required an interpreter. The Tribunal asked Mr Chi whether he wished to withdraw his complaint. Mr Chi answered “Yeah correct.” The Tribunal has not denied Mr Chi procedural fairness.

31 Alternatively, there is no general right to an interpreter and whether or not an interpreter is permitted is subject to the discretion of the Tribunal. (Dairy Farmers Cooperative Milk Ltd v Acquilina (1963) 109 CLR 458 at 464 and Adamopolous v Olympic Airways SA (1991) 25 NSWZLR 25 at 78.) In this case, the Tribunal exercised its discretion to engage in preliminary discussions about Mr Chi’s application without an interpreter being present. The transcript indicates that Mr Chi understood what the Tribunal was asking him and was able to make himself understood. There has been no breach of procedural fairness, nor does the absence of an interpreter during that time satisfy us that Mr Chi was coerced into signing the Deed of Release.

What was the effect of Mr Chi not having legal representation?

32 Finally Mr Chi submitted that he had no legal representation before the Tribunal and that the lawyer from the Legal Aid Commission had only advised him in relation to the Deed of Release, not in relation to the merits of his complaint. While that is true, Mr Chi has no right to legal representation. The absence of legal representation does not mean that the Tribunal coerced Mr Chi into signing the Deed of Release.

Leave is refused

33 The Tribunal’s decision affected Mr Chi’s substantive interests as opposed to matters of practice or procedure. Although that is a factor which would suggest that leave should be granted for him to appeal against the Tribunal’s decision, there are two other factors that tip the balance against granting leave. Firstly, Mr Chi will receive significant financial compensation if the terms of the Deed of Release are enforced. Consequently, there will be no substantial injustice if leave is not granted. Secondly, our examination of the substantive issues persuades us that the prospects of success of Mr Chi’s appeal are minimal.

34 Although we have decided to refuse Mr Chi leave to appeal, we will deal with his other grounds of appeal, even though they are not relevant to the question of leave or to either of the substantive issues.

Adjournment application and refusal of summons

35 On 17 November 2004, Mr Chi applied for an adjournment of the hearing. On 26 November 2004, after receiving and considering a letter from Coles’ solicitors objecting to an adjournment, the Tribunal refused that application.

36 Mr Chi brought proceedings in the Supreme Court for judicial review of the decision by the President of the Anti-Discrimination Board not to accept parts of his complaints because they were lodged out of time. Mr Chi lodged his complaint on 15 March 2001 and the President declined to accept those parts of the complaint that had occurred prior to March 2000. On 30 November 2004 the Supreme Court (Hulme J) heard an application by Mr Chi for an injunction prohibiting the Tribunal from hearing the matter until after the application for judicial review had been determined. The application for an injunction was unsuccessful and the matter proceeded to hearing on 1 December 2004.

37 Mr Chi re-agitated the issue of an adjournment at the beginning of the hearing on 1 December 2004. He pointed out that he had not received a letter from Coles’ solicitors dated 23 November 2004 in response to his adjournment application, until the day before the hearing. In addition, Mr Chi said that the letter contained information that was incorrect. When Mr Chi brought the 23 November 2004 letter to the Tribunal’s attention, the Presiding Member made it clear that the Tribunal had taken the letter into account when it made its decision to refuse the adjournment. When Mr Chi pointed out to the Tribunal what he regarded as an inaccuracy in the letter, the Tribunal said that that matter had nothing to do with the adjournment application being refused.

38 Our reading of the transcript of 1 December indicates that nothing Mr Chi submitted to it on 1 December 2004 persuaded it to change its mind and grant Mr Chi an adjournment. The Tribunal’s refusal to grant an adjournment does not mean that the Tribunal coerced Mr Chi into signing the Deed.

39 Mr Chi also raised the issue of Coles’ alleged non-compliance with a summons in support of his submission that it was Coles, and not him, who was the main “difficulty”. The Tribunal had already dealt with the summons issue when it made the consent orders. It was not a matter about which a finding was made on 1 December 2004.

Orders

1. Leave to appeal against interlocutory order refused.

2. Decision of Tribunal to dismiss Mr Chi’s complaints affirmed.

3. If either party wishes to apply for costs, an application together with written submissions in support of the application is to be filed and served within 21 days of the date of this decision. If either party wishes to respond to an application for costs, written submissions are to be filed and served within a further 21 days. The Appeal Panel will then determine any application for costs on the papers in accordance with s 76 of the Administrative Decisions Tribunal Act 1997.