Frost v TAFE NSW
[2020] NSWCATAD 2
•06 January 2020
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Frost v TAFE NSW [2020] NSWCATAD 2 Hearing dates: On the papers Date of orders: 18 October 2019 Decision date: 06 January 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: M. Tibbey, Senior Member Decision: 1. The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter.
2. The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence.
3. The balance of the Application is dismissed.Catchwords: Practice and procedure – interlocutory applications. Category: Procedural and other rulings Parties: Julie Frost (applicant)
TAFE NSW (respondent)Representation: In person (applicant)
M. Lee (Counsel for respondent )
Minter Ellison (respondent)
File Number(s): 2018/00161029
REASONS FOR DECISION
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These are the Reasons for Decision relating to Orders made on 18 October 2019.
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At the case conference in this matter on 9 October 2019, a number of matters were decided by consent between the parties, including an application to extend the time for compliance with a summons that had been issued, where time was extended and it was agreed by the respondent that the documents sought would be produced.
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A Direction was made on that day that leave is required for any further interlocutory application prior to the hearing of the matter on 31 October 2019 and 1 November 2019 and that any such application, if made, is to be made on the NCAT form entitled “Application for Miscellaneous Matters” and is to be determined “on the papers”.
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The applicant made a number of applications on 13 October 2019, seeking orders as follows:
Orders of 10/9/19: provide reason. Requested but not yet provided.
Provide response to recusal of Anne Britton application.
Judge Susan Cole to recuse herself from influencing applicant’s matters including continual allocation of Britton and Juliet Lucy to applicant’s matters.
Refer misconduct of Susan Cole to President of NCAT ( ADA and WHS offences)
Allow attached summons.
Allow attached appeal.
Reinstate leave for summons of Nawal Silfani (now located).
Non pub (sic) of applicant’s name or disability application to be stood over to end of hearing as originally ordered by Member Linda Pearson.
Teachers to provide qualifications.
Insert “Applicant made multiple complaints” into statement of Claim (to update facts found in summonse (sic).”
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On 18 October 2019, I granted leave for the application and made the decisions set out below in response to the application.
The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter.
The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence.
The balance of the Application is dismissed.
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The applicant has sought reasons for the decisions made by me on 18 October 2019.
Proposed Orders 1 and 2
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These applications are not before me, but appear to be applications that have already been made. As far as I am aware, Reasons for decision in relation proposed Orders 1 and 2 have been provided to the parties.
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If in fact that is not correct in relation to proposed Order 2, then I state that a perusal of the Tribunal’s file indicates that there is no evidence before me that would form a proper basis upon which Principal Member Britton should recuse herself.
Proposed Orders 3 and 4
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There is no evidence before me that could properly be regarded as a basis upon which Deputy President Cole ought to recuse herself.
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Nor is there any evidence of any form of misconduct on her part as referred Order 4 that has been sought.
Proposed Order 5
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As to any other summonses to produce documents, at the case conference the respondent agreed to provide the TAFE emails sought by the applicant without requiring conduct money to do so. To the extent that any documents now sought fall outside the scope of that agreement, I find that the request has been issued too late and too close to the hearing date to permit such further documents to be provided.
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As to the application to summons other witnesses for the respondent, to ensure that they appear, the applicant has notified the respondent who she seeks to cross examine and this is sufficient. If the applicant can prove that she has given proper notice as to the identity of the persons she seeks to cross examine, if such persons are not present at the hearing, it will be open to the applicant to apply for that person’s evidence not to be admitted.
Proposed Order 6 re Appeal
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As to an “appeal”, no appeal was attached to the application.
Proposed Order 7
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As to Order 7 to reinstate leave to issue a Summons to Witness to Ms Silfani, at the Case Conference on 9 October 2019 an oral application was made by the applicant for the issue of a summons to witness to be issued to Ms Silfani. The respondent opposed this, but I indicated that it may be appropriate to issue a summons to witness to the respondent’s legal representative. The respondent’s representative indicated that if the Tribunal were minded to permit a summons to witness to be issued on that basis, then the respondent sought that a statement of the evidence that it was thought she could provide be notified to the respondent prior to the hearing. The respondent also advised the Tribunal that Ms Silfani no longer worked for the respondent, so, on the basis that it would be difficult to locate her within a reasonable period and that issuing a summons to witness was likely to be of little practical utility, that application was refused.
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In the further application of 13 October 2019 set out above, one of the proposed orders was an application to permit a Summons to Witness to be issued on Ms Narwal Silfani as she had now been located.
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As that application had been canvassed at the very recent case conference, I made a decision to permit a summons to witness to be issued, providing it was served by a date sufficiently prior to the hearing to enable Ms Silfani to make arrangements with her work, to be served by 4pm on 24 October 2019. A Direction was also made for the applicant to provide to the respondent a document setting out the evidence that it was anticipated that Ms Silfani would be able to provide.
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I granted leave for a Summons to Witness to be issued to Ms Silfani because she is likely to be able to provide evidence that is relevant to the matters in dispute and because of her seniority and position TAFE at the time the matters the subject of the Complaint occurred. However the lateness of the application means that her reasonable convenience also needs to be weighed in the balance, pursuant to s36(4) and s38 of the NCAT Act, 2013 and therefore a date was set, by which date the Summons to Witness must be served.
Proposed Order 8
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Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 sets out the principles governing whether and in what circumstances a non-publication order may be made by the Tribunal. A decision was made there not to make a non-disclosure order. No further persuasive reasons for the proposed order have been advanced since that decision was made. I adopt the reasons set out in Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 for not making a non-disclosure order. At the conclusion of the hearing, if there are arguments that have not yet been articulated for a non-disclosure order, they can be considered at that time.
Proposed Order 9
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The particular qualifications of teachers are not relevant to the matters in issue before the Tribunal. The question as to whether TAFE discriminated against the applicant will not turn on the qualifications of the teachers, or be affected by it. It will be sufficient for the purposes of the Tribunal to know that they are “teachers” if indeed they are teaching at TAFE.
Conclusion
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The Tribunal grants leave for a Summons to Witness to be issued to Ms Nawal Silfani, to be served on her by 4pm on 24 October 2019, requiring her attendance to give evidence at the hearing of this matter on 31 October 2019 and 1 November 2019 and thereafter as required at the hearing of the matter.
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The Tribunal orders that the Applicant provide to the Respondent and to the Tribunal, by 4pm on 28 October 2019, a statement as to the evidence that that Applicant anticipates that Ms Silfani will be able to provide to the Tribunal at the hearing of this matter, noting that Ms Silfani may or may not actually provide such evidence.
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The balance of the Application is dismissed, for the reasons set out above.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 06 January 2020