Julie Frost v TAFE NSW
[2020] NSWCATAD 58
•18 February 2020
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Julie Frost v TAFE NSW [2020] NSWCATAD 58 Hearing dates: Determined on the Papers Date of orders: 18 February 2020 Decision date: 18 February 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: Applications dismissed.
Catchwords: Procedure – proper conduct of hearing Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Procedural and other rulings Parties: Julie Frost (Applicant)
TAFE NSW (Respondent)Representation: Solicitors:
Minter Ellison(Respondent)
Applicant (Self Represented)
File Number(s): 2018/00161029 Publication restriction: Nil
REASONS FOR DECISION
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On 22 and 23 January 2020 the Applicant filed NCAT Applications on NCAT forms headed “Application for Miscellaneous Matters” with NCAT. One Application was filed on 22 January 2020 and two others on 23 January 2020.
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By Notice of the Registrar issued on 23 January 2020, the parties were invited to make any submissions they wished to make as to whether or not the applications should be dealt with “on the papers” dispensing with a hearing. No submissions were received.
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Pursuant to s50(2), the Tribunal has determined that it will deal with these applications “on the papers”, dispensing with a hearing. A determination of these applications ‘on the papers’ is consistent with the “just, quick and cheap” resolution of the real issues in dispute as set out in s36(1) of the CAT Act.
Application filed on 22 January 2020
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In the application filed on 22 January 2020, signed by Ms Julie Frost (referred to here as ‘the Applicant’) on 11 January 2020, the Applicant seeks that the Members who heard the matter confirm that:
evidence is closed;
no further summonses to be issued;
CAT Act 2013 (NSW) s38(6) is complied with (ordered all relevant evidence) by Tibbey and Murray;
indicate how the Members intend to address their failure to know a victimisation offense (sic) was in issue at the trial on 31/10/19 and 1/11/19;
indicate why the audio portion of trial where Tibbey stated discrimination was the only offence being heard was erased and provide it.
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The Application document has a heading by the Applicant, in capital letters: “Mistrial by CATA 2013 (NSW) s38(6) gross incompetence of Dr Maree Murray and Amanda Tibbey Trial Member”.
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The Application is hereby dismissed for the reasons set out below.
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As to (a) and (b) above, the Tribunal confirms that the evidence is closed and the hearing has taken place. No further summonses will be or have been permitted.
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As to (c) above, it is not clear what application is being made by the Applicant. Rulings were made prior to the hearing as what summonses could be issued and the dates by which they could be issued and those rulings were made regularly and no issue arises under s38(6) from those interlocutory decisions.
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The hearing was conducted appropriately and the Applicant was given an opportunity to present her own case, present her own evidence and cross examine the witnesses for the Respondent. The Applicant conducted her case as she saw fit. No issue arises in relation to the conduct of the hearing under s38(6).
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The Tribunal confirms that it has complied with the requirements set out in s38(6) of the Civil and Administrative Tribunal Act 2013.
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As to (d) above, the hearing that took place was conducted fairly and dealt with the issues in dispute.
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As to (e) above, the Tribunal Members had no involvement with the recording and/or preparation of an audiotape or transcript of the hearing. The Tribunal Members who conducted the hearing were not responsible for the recording or responsible for any transcript .
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Any audio provided to the Tribunal is to be sought by parties and provided through the Registry. That process does not involve the Members who heard the matter.
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As to the heading of this application, there was no mistrial and no “gross incompetence” by the Members appointed to hear the substantive application before the Tribunal as alleged. The hearing proceeded in a regular fashion until the Applicant announced that she no longer wished to participate in the hearing and did not wish to cross- examine any further witness. By that time, the Applicant had presented her case. The Respondent was presenting its case and the Applicant cross-examining the witnesses of the Respondent when she elected not to continue with that process.
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After the Applicant stated to the Tribunal that she did not wish to participate further in the hearing and did not wish to cross examine any more witnesses, the Tribunal made Directions for the filing of written submissions according to a timetable. This was appropriate in the circumstances of the case, namely that the Applicant did not wish to cross-examine further.
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One extension of time after the hearing was provided to the Applicant for her to file submissions, but none were received by the Tribunal. Nor have any submissions been received from the Applicant in reply to those of the Respondent.
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After the expiry of the period for the filing of submissions by both parties, (as previously notified to the parties by the Tribunal) the Tribunal will determine the substantive Application on the basis of the written and oral evidence before it and the submissions received.
Application ‘A’ filed on 23 January 2020
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There were two Applications for Miscellaneous Matters applications filed on 23 January 2020. For convenience only, and to differentiate the two Applications, they will be identified as “Application ‘A’” and Application ‘B’.
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Application A, signed and dated by the Applicant on 11 January 2020, asks Member Tibbey whether she had any knowledge of a redaction in the audio tape or audio editing or audio being received by the Applicant with “parts deleted”.
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As indicated above in response to the Application filed on 22 January 2020, the Members do not undertake the recording function and do not have any involvement in recording, so have no knowledge of any alleged redaction or portions allegedly missing from the tape. Member Tibbey has no knowledge of any alleged redaction or audio editing.
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The Application is dismissed.
Application ‘B’ filed on 23 January 2020
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This application was apparently signed and dated 15 January 2020. It bears a heading “Re: Audio CD# 5 of 1/11/19”
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The application alleges that, through her facial expression, Dr Murray, one of the two Members who conducted the hearing of the substantive Application, showed “hate in her eyes” towards the Applicant and was “poisoned”.
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The Tribunal rejects that characterisation. The case was heard in a fair and impartial manner.
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The Application also refers to an alleged exchange wherein Dr Murray enquired as to the welfare of a “court clerk”, presumably a Tribunal recording officer. The Applicant alleges that Dr Murray was partisan in that exchange, which occurred after the Applicant had refused to continue with her cross examination and walked out of the Tribunal hearing room.
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The Tribunal does not accept that any alleged exchange was material to the issues to be determined in the hearing or had any impact upon it. The evidence had already been heard and was before the Tribunal. The substantive Application will be determined on the basis of the evidence before the Tribunal.
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The Applicant also alleges that she “cried throughout the proceedings and they were adjourned due to that.” The Tribunal does not accept that description of the events. As far as the Tribunal is aware, Ms Frost cried only on the second day of hearing and was offered an adjournment period to compose herself, which she accepted. After that adjournment she resumed cross examining the witnesses of the Respondent. The hearing was concluded, rather than adjourned, because the Applicant stated that she did not wish to continue cross examining the witness who was giving evidence and nor did she wish to cross examine any other witnesses. In light of that, written submissions were ordered.
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Accordingly, the Application is dismissed.
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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: 18 February 2020
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