Doepgen v Mugarinya Community Association Incorporated
[2014] WASCA 67
•28 MARCH 2014
DOEPGEN -v- MUGARINYA COMMUNITY ASSOCIATION INCORPORATED [2014] WASCA 67
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 67 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:66/2013 | 23 JANUARY 2014 | |
| Coram: | PULLIN JA NEWNES JA | 28/03/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MONIKA MARIA DOEPGEN MUGARINYA COMMUNITY ASSOCIATION INCORPORATED |
Catchwords: | Administrative law Procedural fairness Application in State Administrative Tribunal under Equal Opportunity Act 1984 (WA) Appellant without legal representation Whether Tribunal should have referred appellant to pro bono assistance scheme before hearing application |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 32(6), s 105 |
Case References: | Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 Doepgen and Mugarinya Community Association Inc [No 2] [2013] WASAT 67 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 The State of New South Wales v Canellis (1994) 181 CLR 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOEPGEN -v- MUGARINYA COMMUNITY ASSOCIATION INCORPORATED [2014] WASCA 67 CORAM : PULLIN JA
- NEWNES JA
- Appellant
AND
MUGARINYA COMMUNITY ASSOCIATION INCORPORATED
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUSTICE J A CHANEY (PRESIDENT)
Citation : DOEPGEN and MUGARINYA COMMUNITY ASSOCIATION INC [No 2] [2013] WASAT 67
File No : EOA 34 of 2012
Catchwords:
Administrative law - Procedural fairness - Application in State Administrative Tribunal under Equal Opportunity Act 1984 (WA) - Appellant without legal representation - Whether Tribunal should have referred appellant to pro bono assistance scheme before hearing application
Legislation:
State Administrative Tribunal Act 2004 (WA), s 32(6), s 105
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr A J Power
Solicitors:
Appellant : In person
Respondent : Hammond Legal
Case(s) referred to in judgment(s):
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Doepgen and Mugarinya Community Association Inc [No 2] [2013] WASAT 67
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
The State of New South Wales v Canellis (1994) 181 CLR 309
1 JUDGMENT OF THE COURT: This is an appeal against a decision of the State Administrative Tribunal, pursuant to s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The appellant requires leave to appeal: s 105(1) of the SAT Act.
2 The appeal comes before the court on a registrar's notice to attend to show cause why the appeal should not be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal have any reasonable prospect of success.
3 For the reasons which follow, we would refuse leave to appeal and dismiss the appeal.
Background
4 The appellant, who is a prospector, applied to enter Reserve 31427, known as Yandeyarra Reserve, south of Port Hedland, for the purpose of prospecting. The Reserve is Crown land reserved for the use and benefit of Aboriginal inhabitants. It is leased to the respondent, which controls access to the Reserve by way of by-laws made pursuant to the Aboriginal Communities Act 1979 (WA). The by-laws permit the respondent to impose conditions on access to the Reserve by people who are not of Aboriginal descent. The appellant is not a person of Aboriginal descent.
5 The appellant's application to enter the Reserve was approved by the respondent, subject to the payment of a fee of $25,000 per annum. The appellant alleged that the imposition of the fee constituted unlawful discrimination on the ground of race, contrary to s 45, read with s 36, of the Equal Opportunity Act 1984 (WA) (EO Act). It was not in issue that the imposition of the fee on the ground that the appellant was not of Aboriginal descent was discriminatory within the meaning of s 36 of the EO Act. The respondent contended, however, that s 51 of the EO Act rendered the imposition of the fee lawful. That provision provides:
Measures intended to achieve equality
Nothing in Division 2 or 3 [which contains s 36] renders it unlawful to do an act a purpose of which is -
(a) to ensure that persons of a particular race have equal opportunities with other persons in circumstances in relation to which provision is made by this Act; or
(b) to afford persons of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare, or any ancillary benefits.
6 The matter came before the State Administrative Tribunal. The appellant did not have legal representation but was assisted by a friend, Ms Conlan-Nash (to which the Tribunal agreed pursuant to s 39(1)(e) of the SAT Act). The respondent was represented by counsel. The hearing took place on 29 and 30 April 2013, and evidence was given by the respondent's chairman, its chief executive officer and its accountant, each of whom was cross-examined by the appellant or Ms Conlan-Nash.
7 The Tribunal delivered its decision on 14 May 2013. It held that the access fee was imposed for a purpose described in s 51 of the EO Act and accordingly was lawful: Doepgen and Mugarinya Community Association Inc [No 2] [2013] WASAT 67. The appellant seeks to appeal against that decision.
The disposition of the appeal
8 On the hearing before this court, the appellant again acted in person. The absence of legal representation is reflected, with respect, in the appellant's lengthy grounds of appeal, which are not easy to understand.
9 It is apparent, however, that the substantive issue is a contention by the appellant that she was denied procedural fairness in that, being aware the appellant could not afford legal representation, the Tribunal should have adjourned the hearing and referred the appellant to the 'SAT pro bono scheme' (of which the appellant was then unaware) to obtain legal representation, such representation being necessary in order for the appellant to have a reasonable opportunity to present her case.
10 The contention is misconceived.
11 The law of procedural fairness is concerned to avoid practical injustice. At its most basic, procedural fairness ensures that parties are given a fair opportunity to have their case heard and that the decision is made by a decision-maker free of bias. The specific content of the requirements of procedural fairness depends upon the particular circumstances of the case: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 552 - 553; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].
12 There is, however, no principle which required the appellant to have legal representation when appearing before the Tribunal. Whilst a court has jurisdiction to grant an adjournment or order a permanent stay of proceedings until an indigent person charged with a serious criminal offence is provided with appropriate legal representation (Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292), that aside, the rules of procedural fairness do not extend to a requirement that legal representation be available to a party appearing before a court or tribunal: The State of New South Wales v Canellis (1994) 181 CLR 309, 330. The appellant was not denied procedural fairness simply because she did not have legal representation.
13 Nor was the appellant denied the opportunity to have legal representation. The appellant did not seek an adjournment for the purpose of obtaining legal representation, whether under the 'SAT pro bono scheme' or otherwise. It is evident from the transcript of the hearing that the appellant attended the hearing with the intention that she would argue the matter herself, with the assistance, so far as needed, of Ms Conlan-Nash, who it appears is not legally trained. It is apparent that the appellant's contention that she should have been referred to the 'SAT pro bono scheme' is an after-thought. It is, in any event, without substance.
14 The scheme referred to was established under the auspices of the Tribunal but has no statutory basis. It appears to have come into existence at some time in the period February to May 2013. The scheme provides for the creation of a pool of lawyers and town planners willing to provide pro bono assistance to self-represented parties before the Tribunal. Under the scheme, a member of the Tribunal may refer an unrepresented litigant to the scheme coordinator for assistance if the member is of the opinion that representation is appropriate in the interests of justice: cl 3.1 of the scheme guidelines. Clause 3.3 provides that when considering whether to refer a litigant, a member 'can be expected' to have regard to a number of matters set out in cl 3.3.1 to cl 3.3.7 of the guidelines, including the impecuniosity and vulnerability of the litigant, their capacity otherwise to obtain representation, the nature and complexity of the matter, and whether referral of all matters where similar circumstances exist would unduly burden the scheme. A referral does not mean that a panel member will be available to provide assistance: cl 6.
15 There was clearly no obligation on the Tribunal, of its own motion, to adjourn the hearing so that it could refer the appellant to the scheme coordinator for assistance. Assuming the scheme was then up and running, referral lay in the complete discretion of the Tribunal even once it was satisfied that the criteria set out in the guidelines had been met. Moreover, even if the appellant had been referred to the scheme coordinator, there is no reason to believe that the appellant would necessarily have been provided with legal representation. There is nothing to indicate her prospects of obtaining assistance. Whilst the appellant submits that she met all the relevant criteria, it is not clear that that is in fact the case. In any event, satisfaction of the criteria does not mean that assistance will be available. Given that the appellant's case involved, in substance, the cost of obtaining a permit for the purposes of the appellant's prospecting business, it was not a case that self-evidently cried out for pro bono assistance.
16 It is also asserted in the appellant's grounds of appeal that the Tribunal 'did not ensure that the appellant clearly understood the respondent's assertions and their legal implications, or the issue for review'. That allegation is apparently based on s 32(6)(a), (b) of the SAT Act, which provides:
The Tribunal is to take measures that are reasonably practicable -
(a) to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and
(b) to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding.
17 The appellant refers to a number of instances where she contends the Tribunal failed to provide reasonable measures of that nature. A review of the transcript of the hearing reveals that there is no substance in that contention. Contrary to the appellant's assertion, it is apparent that the Tribunal went to considerable trouble to explain to the appellant the Tribunal's procedures and the rulings the Tribunal made, the nature of the assertions made by the respondent, and the legal issues which arose for the Tribunal's determination. We would add that the Tribunal also adapted its procedure to assist the appellant, including varying hearing times and permitting Ms Conlan-Nash to cross-examine some witnesses.
18 The appellant was not deprived of any assistance to which she was entitled. On the contrary, the appellant was given substantial assistance to enable her to present her case and considerable latitude in the manner in which she did so.
Conclusion
19 In our view, none of the grounds of appeal have any prospect of success. Accordingly, leave to appeal should be refused and the appeal dismissed.
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