Kweifio-Okai v RMIT University

[2000] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M130 of 1999

B e t w e e n -

GEORGE KWEIFIO-OKAI

Applicant

and

RMIT UNIVERSITY

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 2.01 PM

Copyright in the High Court of Australia

MR G. KWEIFIO-OKAI appeared in person.

MR J.L. BOURKE:   If the Court pleases, I appear on behalf of the respondent. (instructed by Mallesons Stephen Jaques)

HAYNE J:   Yes, Mr Kweifio-Okai?

MR KWEIFIO-OKAI:   This is an application for leave to appeal from the Full Court of the Federal Court.  The minority judgment in the case was in relation to the illegality of RMIT’s transfer of me to the City campus from the Bundoora campus.  He found that it was illegal and said that consideration as to whether I should be reinstated should be submitted to a trial judge.  The two majority judges rejected or dismissed my appeal on several grounds, some of them including that certain materials or grounds I relied on were not raised with the primary judge, and even if they were raised, they should not be allowed.

I am going to address myself principally, as far as I can within the 20 minutes available to me, the errors entailed in their judgment.  I might also by way of opening say that I have been advised that the manner in which the presiding judge, Justice Branson, read Justice Dowsett’s judgment and wrote a judgment on Justice Dowsett’s judgment raises questions of judicial conduct in the writing of the judgment.  I would not say any more than that.

First of all, the grounds on which I relied and on which were rejected by the majority judges include the primary legal question as to whether RMIT had a right to relocate me from the Bundoora to the City campus.  I refer you to the application book, page 5, line 25.

HAYNE J:   Yes.

MR KWEIFIO-OKAI:   The definition of my campus location is listed there.  It says I “will be based at the Bundoora Campus”.  In my opinion, if RMIT for any reason felt that I cannot be based there, it is a simple question of negotiating my future with the RMIT, a proposition I put to them.  There can be no question about the fact that this issue was before the primary judge, as he has referred to it, and if I refer you also to application book page 54 line 13 to 14, or from line 10 to 25,, it is obvious that the primary judge did address his mind to the content, to the legality of my transfer.

Now, if, in effect, what he did was to endorse the decision of the judicial registrar but, as was pointed out by Justice Finkelstein, he did not actually provide a construction or an intent behind that particular phraseology, particularly designation of my campus location.  I have dealt in great depth with this matter already.  All that I am saying to you by referring you to pages 5 and 54 is that the matter appeared before the primary judge.

Secondly, even if I did not raise the matter, it is a question of law and I brought the matter to a court of law which must first and foremost ask itself whether the action of a respondent is lawful.  In my case, there can be no qualification to the fact that I will be based on the Bundoora campus, no qualification whatsoever.  The little qualification that I may be required to work on other campuses of the University suggest some temporariness on a …..and conditions under which I could temporarily work in those institutions.

There is another ground which he said that I did not raise with the primary judge.  I refer you to application book page 18, line 30, which is the last two sentences.  The sentences in italics relate to a note by Mr Raymond when he met Matthew McGowen, the president of the RMIT staff union, and the notation is:

Had a meeting with Matthew McGowen yesterday.  Says that they would not accept George Kweifio-Okai back either at Bundoora or in the City.

Now, the RMIT has three campuses.  One of them is Fisherman’s Bend or whatever it is, for aviation or aeronautical engineering.  My faculty of Physiology and Anatomy and a related faculty in the City were on two campuses only.  Now, if Matthew McGowen says I will not be allowed to be back at either Bundoora or the City, it is an effective call for my dismissal, before an investigation has gone into it.  This matter, therefore, as noted by the primary judge, did in fact indicate that he was aware, and there are several examples, aware that I was subjected to union lock-out which, under the circumstances, is itself sufficient for any judge, applying his or her mind, to order my reinstatement.

The other alternative argument I am putting in support of my leave to appeal can be found in the supplementary application book.  In the supplementary application book I sought on four grounds to have the hearing before the primary judge to be adjourned for only 21 days.  I sought the adjournment on the basis of, one, inadequate discovery of documents; two, that witnesses had been interfered with; thirdly, that the chairman of the Misconduct Committee who found that I had not complied with the directive to go to the City from Bundoora, that person, Ern Reeders, had made himself suddenly unavailable.  Fourthly, I sought to impress on the primary judge that the witnesses had been interfered with.  I am now going to mention the appropriate pages where these are.  Very briefly ‑ ‑ ‑

HAYNE J:   Just before you go to that, are these aspects of the matter aspects that you took up in the Full Court of the Federal Court?

MR KWEIFIO-OKAI:   That is right, yes.

HAYNE J:   Just a moment, in the Full Court of the Federal Court, could you show me where I will find reference to your raising these complaints at that level of the system?

MR KWEIFIO-OKAI:   It was in my submission and in my submission of reply.

HAYNE J:   Perhaps, the gentleman assisting you may be able to turn it up while you carry on with the rest of your argument, Dr Kweifio-Okai.  We ‑ ‑ ‑

MR KWEIFIO-OKAI:   Thank you very much.  The supplementary application book, I now refer you to page 13 of the supplementary application book at line 20.  I will just read a relevant point, but the bottom of that page is relevant to it.  His Honour said:

That was in relation to further documents that you sought on that occasion –

and I said:

Yes, please.

His Honour then went on and said:

Very well.  Mr Bourke, I’m not sure how extensively you’ve been instructed about this but on the last occasion when this matter was before the court in an interlocutory form, Dr Kweifio-Okai sought production of a number of documents which were set out in an affidavit which was affirmed on 20 November 1998.

It then went on to page 15, line 20, in which I said the following, line 19 starting, I said:

The reason I –

sought the –

information, come to me on Friday the 27th after a week’s notice from the previous Friday was so that I could see friends of mine who are lawyers who could help with some form of legal direction.  The arrival of the fax and the courier was simply too late for me to benefit from even the limited response that has been given to me.  In view of all that, except if you want me to respond late, I will seek an adjournment of this case and request that, particularly in relation to witnesses, that I be given a minimum of 21 days of the list of witnesses that RMIT or the respondent intends to call -

On page 16, line 20, I also said:

The danger here is to put me in a situation where given my limited skills of cross‑examination, to be able to bring out these things in witnesses.  It is absolutely important that if we have documentary evidence, that you be spared the extreme difficulty in judging the credibility of witnesses.

I then went on to say:

if it is not…..made available –

that is the documents –

it will compromise my capacity to defend myself.

The second series of references I will give you in support of interference of witnesses is page 19, line 20.  I made reference in relation to having my witnesses suddenly withdrawing because one Mr Raymond from the RMIT was speaking to them and some of them just said, you know, they cannot just take the risk, and a number of them withdrew.  Now, there is a reference to a communication with Mallesons Stephen Jaques, Nicola Phillips, in which I gave my list of witnesses, 16 of them, virtually those I wanted to defend me could not come.  On page 19, line 26, I said:

If this is adjourned  I think there will be a breathing space between what Peter Raymond may or may not have told the witnesses and the appearance here.

With regard to the absence of Ern Reeders, who is the chairman of the Misconduct Committee, the point was raised that he was sick but was sitting in the office of Mallesons Stephens Jaques and could not attend.  I made the point here that when he was present, the judicial registrar found on page 1 of the supplementary application book, page 1, line 23:

In so far as this disciplinary inquiry was a new and separate inquiry to anything that had gone before and is relied upon by the respondent as establishing its obligations pursuant to s170DC, a full consideration of all issues the applicant sought to raise –

and whatever.  If we go to page 2, second line, the judicial registrar writes:

In my view, in this respect, the applicant was not in the course of that hearing, accorded adequate opportunity to be heard in relation to the allegations.

The reason why she made that finding was because the chairman of the Misconduct Committee was present and she was able to make judgment.  All of a sudden Ern Reeders was not going to be available before the primary judge.  Now, if one then looks at page 23 – I have this somewhere – yes, if we look at page 23, line 34, the primary judge said:

It might be appropriate, Dr Kweifio-Okai, if you, by way of assisting the matter, could prepare a series of questions which you would address to Prof Readers if he were required to attend –

Now, I was defending myself over a five day period and I was supposed to pause and set up a series of questions to an important member, a chairman of a committee whose recommendation RMIT relied on to relocate me from Bundoora to the City.

Now, problems with witnesses, there was a lot of confusion, page 24.  I was deceived that I was going to call witnesses first, but when we went there, Justice Ryan said that the earlier ruling was that the respondent was going to go first.  Now, on page 24, line 31, I said:

So even on the business of the organisation of witnesses, I am of the opinion that if the respondent were to be given an opportunity to give me 21 days’ notice of the list of the witnesses – I don’t know whether they can be legally required to do so – but I think it would be professionally proper, dealing with an applicant who is defending himself because he’s been denied long service entitlements, if this case were adjourned to the end of January and I were given information, say, by the first week of January about a list of witnesses, we can organise it, in my opinion, in a better way.

Now, all of them were rejected, and even when I sought leave to appeal against the adjournment of the case, his Honour rejected it.  Now, when the thing started, the documents which I needed to support certain grounds were absent and Mr Bourke was representing RMIT then before the primary judge, then went on to list my misdemeanour, my behaviour, what I have done wrong.  Yet, the history of the problems leading to my provocation and my actions we had long been dealt with were absent, the documents were lost.  I could not, in fact, defend myself under these circumstances, and my only witness who agreed to testify on my behaviour, Mal Graydon, was, number one, accused of having chips on his shoulders, number two he was told directly that does he realise that if, how do you call it, I am reinstated, nobody would talk to him in the department, and so on and so forth.

When I came to the end of the thing, the primary judge adjourned it, I came back again, my voice broke, and I could not continue and just said, “Thank you” and left.  Under those oppressive conditions, I do not believe that the primary judge, whatever he may have made, could be relied upon by a competent court to find that if these things were analysed in the manner in which I gave my submission, detailed 21 page submission based on the documents in front of the primary judge, it will be found that I will be back at the RMIT in no time.

HAYNE J:   Are these complaints complaints that you made to the Full Court of the Federal Court?

MR KWEIFIO-OKAI:   Yes, I made them to the Federal Court, but since my time is up, I will be quite happy if my reply ‑ ‑ ‑

HAYNE J:   No, the yellow light indicates that you have a limited – just a moment – the yellow light indicates that you have a limited time left.  The red light will indicate when it is time to stop.

MR KWEIFIO-OKAI:   Okay.

HAYNE J:   Are there other matters that you wish to put to us?

MR KWEIFIO-OKAI:   The other matters I wish to say are sprinkled all around the appeal court, but one which I will refer to you is in the supplementary, it is page 55.  At 55 there refers to one Kerry Anne Browning who was accused by the court of fire bombing ‑ ‑ ‑

HAYNE J:   Was this material that was before the Full Court?

MR KWEIFIO-OKAI:   It was not, but I think the court must be aware * ‑ ‑ ‑

HAYNE J:   Then if it – just a moment Dr Kweifio-Okai – if it was not material before the Full Court, it is not right that you should now be able to refer to it.

MR KWEIFIO-OKAI:   Okay.  If I can refer you, then, to something which was before the court, you will notice in the supplementary application book, page 15, line 35:

That mainly seems to be concerned with the issues of legibility which were discussed on the last occasion when Mr Moore said he would do the best he could to provide more legible documents.  It is concerned with the identify of the person designated by some initials and he’s supplied that information and he’s sought instructions on the reference to ASIO –

That was what I was going to elaborate on, and this material which was before the court, page 34, last sentence, Scott Lawson, who was the manager of the RMIT managerial service, he said:

ASIO not involved –

I think I will leave it there.  Thank you.

HAYNE J:   Thank you, Dr Kweifio-Okai.  We will not trouble you, Mr Bourke.

We agree with the majority in the Full Federal Court that there might well have been matters of evidence which bore upon the terms of the applicant’s contract of employment, their full content and what, if any, breaches of them may have occurred.  There is, in our opinion, no substance in any of the other points which it is sought to raise by the applicant.  That being so, we are of the view that any appeal would have insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

MR BOURKE:  If the Court pleases, we do seek costs.  There is a provision that affects orders as to costs, I could hand that up, your Honour, Under the relevant Industrial Relations Act  that applied.

HAYNE J:   Do you accept that that provision has application here?

MR BOURKE:   For the purposes of today, we do accept that, which makes our task more difficult for costs.

HAYNE J:   Do you press your application?

MR BOURKE:   We do.

HAYNE J:   In face of this section?

MR BOURKE:   We say there was no reasonable – the application was made without reasonable cause.  There was no reasonable prospect of success of a grant of special leave.

HAYNE J:   In all the circumstances, there will be no order for costs.  The order is special leave refused.

AT 2.25 PM THE MATTER WAS CONCLUDED