Neeson v Director General, Department of Education and Training

[2010] NSWADTAP 50

Appeal Panel - Internal

CITATION:	Neeson v Director General, Department of Education and Training [2010] NSWADTAP 50
PARTIES:	APPELLANT Bruce Neeson RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	099081
HEARING DATES:	30 April 2010
SUBMISSIONS CLOSED:	1 June 2010
DATE OF DECISION:	16 July 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Huntsman C - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	APPEAL – procedural fairness – admission of evidence – inadequate reasons
DECISION UNDER APPEAL:	Neeson v Director General, Department of Education and Training [2009] NSWADT 292
FILE NUMBER UNDER APPEAL:	081077, 081041
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Barghouthi v Transfield Pty Ltd [2002] FCA 666 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bobb Borg v FTT & Anor [2002] NSWSC 504 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 Northern Territory of Australia v Herbert [2002] NTSC 4 National Australia Bank v Rusu (1999) 47 NSWLR 309 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456K v K [2000] NSWSC 1052 Hans v Building Professional Board [2008] NSWADTAP 13
REPRESENTATION:	APPELLANT In person RESPONDENT Ms K Nomchong, counsel
ORDERS:	1. Leave is refused for the appeal to extend to the merits of the Tribunal’s decision 2. The appeal is dismissed.

REASONS FOR DECISION

Introduction

1 Mr Neeson resigned from his job as a primary school teacher on 29 February 2008 when he was 75 years old. He complained to the Anti-Discrimination Board that his resignation constituted a ‘constructive dismissal’ and that the ‘dismissal’, and the way he was treated prior to being ‘dismissed’, constituted age and/or disability discrimination in breach of the Anti-Discrimination Act 1977 (AD Act). He also complained that the refusal to re-employ him constituted victimisation: AD Act, s 50. After a three day hearing, the Tribunal dismissed each of his complaints. Mr Neeson has appealed against that decision both on questions of law and on the merits. He is entitled to appeal on questions of law but must obtain leave before appealing against the merits of the Tribunal’s decision: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. We have refused leave for the appeal to extend to the merits of the Tribunal’s decision and have dismissed his appeal on questions of law. We set out our reasons below.

Age discrimination complaints

2 Legal test. Age discrimination at work is unlawful in certain circumstances: AD Act, s 49ZYB(2). Age discrimination is defined in s 49ZYA. The Tribunal identified the legal tests that applied to Mr Neeson’s complaints of age discrimination at [44] of the decision.

44 In order to for the applicant to prove that he was discriminated against on the grounds of age, he must prove:

a) that the relevant officer of the respondent treated him less favourably;
b) in the same circumstances, or in circumstances which are not materially different than the relevant officer treated or would treat another person who was not the same age - i.e. younger; ("the comparator”)
c) that the relevant officer did so because of his age; ("causation");
d) that such less favourable treatment resulted in an adverse consequence in terms of:

(i) the terms and conditions of employment that were afforded to him, or
(ii) by dismissing him; or
(iii) subjecting him to any other detriment.

3 Mr Neeson did not submit that the Tribunal had incorrectly stated the legal test for age discrimination and we agree with the summary of that test set out by the Tribunal.

4 Alleged conduct. The Tribunal identified the conduct which Mr Neeson alleged constituted direct age discrimination. The Tribunal found that some of the alleged conduct had not occurred and that the conduct which had occurred did not constitute discrimination either because the “comparator” (sometimes called “differential treatment”) or “causation” elements of the test for age discrimination had not been met. The description of the conduct and the Tribunal’s findings in relation to the conduct, are summarised below:

1. Conduct that the Tribunal found had not occurred

(a) the allocation of a disproportionate number of low performing students to his class in 2006;

The Tribunal accepted the evidence of the Principal and the Assistant Principal that it was the Assistant Principal and not Mr Neeson who was assigned the greater proportion of low performing students.

(b) being required to respond to a complaint when on sick leave;

The Tribunal did not accept Mr Neeson’s evidence that he was informed of a complaint or required to respond to a complaint while on sick.

(c) that the Principal encouraged parents to make complaints against him;

The only evidence that the Principal had engaged in such conduct was Mr Neeson’s assertion based on a conversation he had with a parent. The parent was not called to give evidence and the Tribunal was not satisfied that the alleged conduct had occurred.

(d) constructive dismissal

The Tribunal found that Nr Neeson had not been constructively dismissed because the actions that were taken were not designed to induce or force him to retire.

2. Conduct that the Tribunal found had occurred but which did not meet the “comparator” test

(a) that the Principal did not ask a parent to withdraw a complaint which was age based;

The Tribunal found that while the Principal did not ask the parent to withdraw the complaint, he would not have acted any differently had the complaint been about a younger teacher. As the “comparator” test had not been satisfied, the complaint was not substantiated.

3. Conduct that the Tribunal found had occurred but which did not meet the “causation” test

(a) the requirement to attend formal meetings, claims by the Principal that he was stressed and offers of light duties and then being placed on the teacher improvement program;

(b) the writing (but not sending) of a referral letter to HealthQuest;

(c) refusal to re-employ him as a casual teacher after his retirement.

The Tribunal found that these steps were taken solely to manage the large number of complaints by parents about Mr Neeson’s classroom teaching and not because of his age.

5 Mr Neeson’s grounds of appeal focused mainly on the conduct that the Tribunal found did not meet the “causation” test.

Disability discrimination complaints

6 Disability discrimination at work is unlawful in certain circumstances: AD Act, s 49D(2). Disability discrimination is defined in s 49B. Although not summarised by the Tribunal, the test for disability discrimination is similar to that for age discrimination.

7 Mr Neeson alleged that he became stressed and anxious as a result of the treatment that he was afforded, not that the treatment was on the ground of any actual or perceived disability. The Tribunal dismissed Mr Neeson’s complaints of disability discrimination on the basis that there was no conduct which was alleged to have occurred ‘on the ground of’ Mr Neeson’s disability. None of Mr Neeson’s grounds of appeal took issue with this finding.

Victimisation complaints

. The Tribunal set out s 50 of the AD Act at [42]. One effect of that provision is that it is unlawful to subject a person to a detriment on the ground that they have made a complaint that would amount to a contravention of another provision of the AD Act. Mr Neeson alleged that he had been subjected to various detriments as a result of complaining about discriminatory conduct. The Tribunal identified the following conduct as allegedly constituting victimisation in breach of s 50 of the AD Act:

(a) comments made by Mr. Ron Hankin, School Education Director, Far North Coast Network,
i. following the first investigation that he, the applicant, "had a lot to answer for"
ii. that, he, the applicant should forget what had happened before 2006; and
iii. to the Teachers Federation, which the applicant believed to have been false.
(b) That he, the applicant, was singled out when all classes were behaving badly.

8 One significant detriment that Mr Neeson said he had been subjected to was the refusal to approve him to teach casually following his resignation. The Tribunal found at [63] that Mr McGrath, the person who formally advised him that his application had been refused, was not aware that Mr Neeson had made a complaint under the AD Act. For that reason, the decision to refuse to approve him as a casual teacher could not have been ‘on the ground’ that Mr Neeson had made such a complaint.

Grounds of appeal

9 Mr Neeson has identified numerous grounds of appeal. In one document, filed on 16 February 2010, he asks rhetorically whether it is ‘acceptable’ for the Department to have done certain things. As he was self-represented, Mr Neeson was understandably not aware that even if those actions were found to be ‘unacceptable’ that it not a ground of appeal. However, as Mr Neeson was self represented, where his submissions disclose a question of law, we have characterised the ground as raising such a question. Similarly, where a ground of appeal is apparently directed to the merits of the Tribunal’s decision, we have characterised it in that way: Barghouthi v Transfield Pty Ltd [2002] FCA 666 at [11] – [12].

Appeal on questions of law

10 The questions of law which Mr Neeson alleges arise from the Tribunal’s decision are:

1. whether he was denied a fair hearing because the Tribunal:

(a) did not give him an adequate opportunity to present his case; in particular because the Tribunal-

(i) did not allow him to make submissions about the inadmissibility of ‘hearsay’ complaints against him;

(ii) prevented him from asking certain questions of witnesses in cross examination;

(iii) excused Mr Houlahan from attendance on a second hearing day thus preventing him from continuing to cross-examine Mr Houlahan;

(iv) did not give him an opportunity to give evidence about his financial situation.

(b) the Tribunal was biased against him because:

(i) the proceedings were not conducted informally and the Tribunal showed displeasure at having to deal with a self-represented applicant with no legal background;

(ii) the Presiding Member made comments suggesting that she did not believe an assertion he made.

2. whether the Tribunal admitted into evidence material that it should not have admitted;

3. whether the Tribunal gave inadequate reasons for its decision because it ignored evidence critical to a disputed issue and contrary to an assertion of fact made by one party.

Fair Hearing

11 Legal principles. The Tribunal is required to conduct proceedings in a procedurally fair manner including giving each party “the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”: ADT Act, s 73(4)(c). Mr Neeson submitted that he had not been given that opportunity because he had not been allowed to make submissions about the inadmissibility of ‘hearsay’ complaints, had been prevented from asking certain questions, had been given insufficient time to cross-examine Mr Houlahan and had not been allowed to make submissions about his financial situation.

12 Opportunity to make submissions about ‘hearsay’ complaints. Prior to the hearing Mr Neeson wrote to the Tribunal asking for a ‘ruling’ on whether or not, in the absence of any pupil or parent giving evidence, ‘hearsay’ complaints against him by those people would be admitted as evidence. Mr Neeson provided written submissions as to why those complaints should not be admitted. On 23 June 2009 the Registrar wrote to Mr Neeson saying that the Judicial Member with case management responsibility for his complaints had advised that that issue would be determined at the hearing which was listed for 15, 16 and 17 September 2009. Mr Neeson raised his concern about reliance on ‘hearsay’ evidence at the beginning of the hearing. The Tribunal advised that the issue would be dealt with at the time the Department sought to tender that material. When the Department sought to tender that material, Mr Neeson objected on the basis that they were hearsay. Mr Neeson could not identify the specific documents he was objecting to and the Tribunal delayed the tender until the following day to allow him to do so. The following day the Tribunal gave Mr Neeson an opportunity to object but he did not mention the hearsay nature of the complaints and the documents were admitted. A supplementary bundle of documents (including some further parental complaints) was provided to Mr Neeson on the first day of the hearing. He objected to the tender of that bundle and gave reasons for that objection but did not mention hearsay as a ground for objection.

13 Conclusion. Contrary to Mr Neeson’s submission, he was given the fullest opportunity practicable to object to the complaints being admitted into evidence at the hearing. The Presiding Member asked Mr Neeson specifically whether he had any objection to the respondent’s material containing the complaints being admitted into evidence. That material had already been marked for identification to give Mr Neeson an opportunity to read it. Mr Neeson objected to the material being admitted into evidence. The transcript reveals that, contrary to Mr Neeson’s submission, he was given ample opportunity to object to the complaints being admitted into evidence.

14 Preventing Mr Neeson from asking certain questions. Mr Neeson says he was not given a ‘fair go’ by the Tribunal because the Presiding Member did not allow him to ask Mr Houlahan (the school’s Principal) and Mr Hankin (School Education Director for the Far North Coast Network) certain questions. In particular, Mr Neeson submitted that the Tribunal prevented him from asking Mr Houlahan questions about what was planned for him if he had turned up to school at the beginning of the 2008 year. Later he asked Mr Hankin similar questions. The Tribunal said that because he did not return to school, any instructions about what would be done if he did return were irrelevant to his discrimination claim.

15 Mr Neeson also submitted that he was prevented from asking questions about an email from Mr Hankin to Mr Houlahan dated 4 June 2007. That email said, in part:

Alexis and I have discussed a possible HealthQuest referral with Mr Neeson. As he has raised the issue it seems appropriate to fast track that process. It may be that a reduction in Mr Neeson’s ability to perform due to health concerns is the golden bridge over which a retreat to retirement may be managed.

16 According to the Department, there was no error in the Tribunal refusing to allow Mr Neeson to ask questions about matters that never eventuated. As Mr Neeson resigned on 8 February 2008 (effective from 29 February) there is no relevance to the Department’s plans about what was to happen if he returned to school.

17 Conclusion. We accept the Department’s submission that the matters about which Mr Neeson wished to question Mr Houlahan and Mr Hankin, were all events which came to his attention during the proceedings and could not, therefore, have influenced his decision to resign prior to the beginning of the 2008 year. Consequently, any plans that the Department may have had for Mr Houlahan, which he did not know about at the time, were irrelevant to any issue before the Tribunal. The Tribunal did not make an error of law in refusing to allow Mr Neeson to question witnesses about those plans.

18 Limiting time for cross-examining Mr Houlahan. Mr Houlahan was the Principal of the school at which Mr Neeson taught. His evidence was interposed on the first day of the hearing because he had to attend his nephew’s funeral the following day. Mr Neeson says that despite the fact that he expected to be able to continue to cross examine Mr Houlahan on the third day of the hearing, the Tribunal did not require him to attend on that day.

19 On 10 September 2009 the Department’s lawyers wrote to Mr Neeson to advise that Mr Houlahan was only available on the first and third days of the hearing. Mr Neeson replied saying that he expected Mr Houlahan to be available for questioning on the third day of the hearing. The Presiding Member’s response on the morning of the first hearing day when this issue was raised, was to say, “Let’s deal with that when we see how long he takes this afternoon.” The hearing was adjourned until 2 pm when Mr Houlahan’s evidence was interposed. Mr Neeson cross-examined Mr Houlahan from approximately 2.30 pm until 3.50 pm. During the course of the afternoon the Presiding Member asked the Department’s counsel whether she had a view about Mr Houlahan returning on the third day for the purpose of being questioned further. Counsel replied that she would object “very strongly”. She said, “Mr Houlahan is in the middle of a family crisis at the moment – a very serious one. It’s his only brother’s son who has been murdered. He has to attend the funeral. We would object to Mr Houlahan having to come back on Thursday in the aftermath of that funeral to undergo further questioning.”

20 Mr Neeson objected to Ms Nomchong saying that Mr Houlahan’s nephew had been murdered, when his understanding was that the charge was manslaughter and the defendant was pleading not guilty. Mr Neeson says that the Department was attempting to gain sympathy from the Tribunal by using the word “murdered”. In our view, even a more neutral word such as ‘killed’ had been used, the Tribunal would still have excused Mr Houlahan from attending for further cross-examination: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ.

21 At approximately 3.35 pm, following the Department’s submission about Mr Houlahan’s availability, the Tribunal gave Mr Neeson a further 25 minutes to complete his cross examination of Mr Houlahan. Mr Neeson used 15 minutes of that time. At the conclusion of the re-examination Mr Neeson was granted leave to ask further questions. Mr Neeson submitted to the Appeal Panel that if he had had more time he would have asked Mr Houlahan questions about the way he had ‘obtained’ complaints from parents. The Department submitted that Mr Neeson had had access to Mr Houlahan’s statement for six months which was ample time for him to prepare the questions he intended to ask. He also had access to other material before Mr Houlahan gave evidence. Mr Neeson finished his questioning of Mr Houlahan with 15 minutes of time still available. In the Department’s view, Mr Neeson could have used that time if he had further questions.

22 Conclusion. While the Tribunal is obliged to afford Mr Neeson procedural fairness, it has power to require the presentation of the respective cases of the parties to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the case: ADT Act, s 73(5)((d). A relevant consideration in determining whether the time is reasonable is whether the party was informed at the outset that the presentation of its case was limited to a particular time frame: Bobb Borg v FTT & Anor [2002] NSWSC 504 per Master Harrison at [27]. The Tribunal indicated to Mr Neeson during the course of the cross examination that Mr Houlahan would not be recalled to give evidence on the third day of the hearing. The Presiding Member gave Mr Neeson a further 25 minutes to question Mr Houlahan but he used only 15 minutes of that time. While the Tribunal must give each party “the fullest opportunity practicable to be heard” the Tribunal may limit the presentation of each parties’ case. In light of that power and having reviewed the transcript, we are satisfied that Mr Neeson was given adequate time to cross-examine Mr Houlahan and there was no breach of procedural fairness on that count.

23 Evidence about financial situation. Finally, Mr Neeson submitted that he had not been given adequate time to present evidence about his financial situation. As part of the documentation submitted to the Tribunal in March 2009, Mr Neeson filed a document headed ‘Remedies Sought and Loss’ in which he claimed financial detriment. The Department summonsed Mr Neeson to produce financial records including income tax returns and called on that summons on first day of the hearing. While some documents were produced, counsel for the Department did not press Mr Neeson to produce the remaining documents. Mr Neeson submitted to the Appeal Panel that the main reason for providing evidence about his financial situation was to establish that he could not afford to summons parents and other witnesses to give evidence.

24 Conclusion. It was open to Mr Neeson to seek to tender financial records or any other documents on which he wished to rely. He did not do so. The main relevance of those records would have been in relation to any claim for compensation. As the complaint was not substantiated, that issue did not arise. Mr Neeson did not tender his financial records and, in any case, they were not relevant to any issue in dispute. There has been no breach of procedural fairness on that count.

Bias

25 Legal principles. The bias rule of procedural fairness requires a decision maker to disqualify him or herself from hearing a matter if he or she is actually biased or a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277 per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6] and [8]. The rule against bias is designed to maintain public confidence in the administration of justice. Mr Neeson submitted that the Tribunal was biased against him because of the formality of the proceedings and because of some comments that the Presiding Member made.

26 Informality and self representation. It is an object of proceedings in the Tribunal that they be determined “in an informal and expeditious manner”: ADT Act, s 3(c). Mr Neeson was not legally represented but was assisted by his daughter. The Tribunal followed its usual practice of hearing opening submissions from the applicant, taking the witness evidence by examination, cross-examination and re-examination, receiving documentary evidence by tender and then hearing final submissions. The Presiding Member told Mr Neeson that the hearing was a structured process and that he was not permitted to speak whenever he wished to do so. While Mr Neeson was being cross-examined, his daughter interrupted saying that counsel for the Department, Ms Nomchong, had ‘just got him to admit to something that he did not know.’ Ms Nomchong requested that the Presiding Member direct Mr Neeson not to discuss his cross examination with his daughter. The Presiding Member did not consider such a direction to be necessary but went on to say that Mr Neeson had had ‘ample opportunity’ to think about legal representation. When Mr Neeson told the Member that he could not afford it, she mentioned that pro bono legal assistance was available. She said, “. . I know that the Bar Association and the Law Society each has a list of people who are prepared to help someone in court for little or no charge.” Mr Neeson replied as follows, “I contacted them; but once they . . they’re all happy; but once they hear it’s against the Department of Education, they close up.” The Presiding Member replied, “Well, I have to say, Mr Neeson, I know that not to be true. I do know that not to be true.” Mr Neeson says that it he took umbridge at the suggestion that he was lying.

27 Conclusion. Given that he was not legally represented, the Tribunal guided Mr Neeson through the process. As well as giving him advice about what he could and should do, the Tribunal counselled Mr Neeson against talking before others had finished and failing to answer questions in cross examination. Numerous examples are set out in the Department’s written submissions. Having read the transcript, we are satisfied that the Tribunal conducted the hearing informally and expeditiously, complied with its duty to afford Mr Neeson procedural fairness and met its specific duties in s 73 of the ADT Act. Suggesting that he think about obtaining legal representation and mentioning sources of pro bono advice is one way in which the Tribunal attempted to assist Mr Neeson. Contradicting Mr Neeson’s assertion that a reason for not providing him with pro bono advice was that the complaint was against the Department, does not give rise to an apprehension of bias. The Presiding Member was merely expressing her firm view of the basis on which pro bono advice is given. There is no evidence of actual or apprehended bias.

Admitting evidence that was not admissible

28 Legal principles. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(1). This means that it must "exercise its judgment as to the manner in which it will inform itself of any matter in dispute before it" ensuring that "no real injustice will result" from the relaxation of the rules of evidence: Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J. A decision maker should decline to admit irrelevant evidence or evidence that is too unreliable even if a self-represented party does not object to it: National Australia Bank v Rusu (1999) 47 NSWLR 309 at 312.

29 Complaints from parents and students. Mr Neeson had intended to summons four parents to give evidence. The Department opposed that application. Mr Neeson says he ultimately withdrew his application for the parents to be summonsed for financial reasons. In those circumstances, the Department’s objection to Mr Neeson issuing the summons is not relevant to the question of whether the Tribunal erred by admitting the complaints. The Tribunal admitted the complaints into evidence. Mr Neeson did not dispute that parents had made complaints, rather, his concerns were that the allegations contained in the complaints were false and/or that Mr Houlahan had encouraged parents to complain as part of a conspiracy to get rid of him. As we have said, when the occasion arose, Mr Neeson did not object to the admission of that evidence on the ground that it was ‘hearsay’ and therefore unreliable. Nevertheless, if that evidence was so unreliable or irrelevant that an injustice would result from its admission, the Tribunal should have rejected it.

30 Relevance. The evidence of complaints made about Mr Neeson’s teaching ability was directly relevant to the issue of causation, that is whether one of the real or genuine reasons for the Department’s conduct was Mr Neeson’s age. It was the large number of those complaints, and the evidence given by the witnesses about them, that persuaded the Tribunal that certain conduct of the Department was not ‘on the ground of’ his age. That conduct included placing Mr Neeson on a teacher improvement program, preparing a referral to HealthQuest and refusing to re-employ him as a casual teacher. The Tribunal found that these steps were taken solely to manage the large number of complaints by parents about Mr Neeson’s classroom teaching and not because of his age.

31 Reliability. We accept that the complaints themselves are not the most reliable evidence of Mr Neeson’s teaching efficiency because the parents who made the complaints did not give evidence. Nevertheless, the evidence was not so unreliable that the Tribunal should have refused to admit it despite the fact that Mr Neeson did not object to its tender on the basis of hearsay. Mr Neeson had been the subject of 16 parental complaints in 2006 from 13 different families and a further 13 complaints between January and June 2007. It was the number and nature of these complaints and Mr Neeson’s response to them that persuaded the Tribunal that they should be taken into account.

Not admitting evidence that should have been admitted

32 Legal principles. The same legal principles expressed at [28] above apply to the question of whether the Tribunal made an error of law by refusing to admit into evidence material that it should have admitted. In particular, the Tribunal should refuse to admit into evidence material that is irrelevant or too unreliable.

33 30 January email. Mr Neeson submitted that the Tribunal failed to admit evidence that was relevant including an email from Mr Hankin to Ms Carrigan dated 30 January 2008. That email recommends that Mr Neeson be placed on alternate duties pending the HealthQuest referral. Mr Hankin stated in the email that he would not allow Mr Neeson to be located at his office because of his “litigious and untrustworthy conduct”. Mr Neeson said that he wanted to draw the Tribunal’s attention to a covert conspiracy on the part of the Departmental officers that if he did not resign of his own accord, there was a plan to tell him when he returned to the school that there was no job for him. According to Mr Neeson, this demonstrated that the Department’s intention was to dismiss him rather than support him. It also shows that his resignation was, in fact, a ‘constructive dismissal’.

34 Although this email was not tendered and therefore not admitted into evidence, Mr Neeson says that he referred to it in his final written submissions to the Tribunal. We understand Mr Neeson’s submission to be either that the Tribunal erred by failing to admit this document into evidence or that the Appeal Panel should now extend the appeal to the merits of the Tribunal’s decision and accept this email as further evidence.

35 We do not accept either proposition. The Tribunal did not regard the email as sufficiently relevant to admit it into evidence because even if there was a ‘conspiracy’ of the kind Mr Neeson alleged, he could not have suffered any detriment as a result of that ‘conspiracy’ because he resigned before the Department’s so called ‘plan’ was put into action. We can detect no error of law on the Tribunal’s part in refusing to admit material that had no relevance to any issue in dispute.

36 9 February 2008 email. The day following Mr Neeson’s resignation, Mr Hankin emailed his colleagues to congratulate them all for their contributions. Mr Hankin referred to ‘the endless tension caused by Mr Neeson’s intimidatory and irrational behaviour’. Extracts from the email were tendered by Mr Neeson as part of Exhibit 3. When he was cross-examined about this email, Mr Hankin said that it was simply the conclusion to a long and extremely difficult situation. He added that Mr Neeson had never conceded he had serious problems and because he failed to co-operate, he and his team could not assist him to improve. The Tribunal admitted into evidence the extract of the email so it cannot be said that the Tribunal failed to admit evidence that should have been admitted.

No evidence/inadequate reasons

37 Background. Mr Neeson submitted that the Tribunal made an error of law by not referring to two emails, dated 31 January 2007 and 4 July 2007, in its reasons for decision. He says that those emails were critical to the questions of whether he had been constructively dismissed and whether age was a reason for the Department’s treatment of him. The Department submitted that Mr Neeson has not identified a question of law because he does not say that the findings about constructive dismissal (at [47]) and causation (at [58]) of the decision were made in the absence of evidence. According to the Department, it is only if the Tribunal made findings without any evidence that the Tribunal makes an error of law. We agree that the Tribunal’s findings were not made without evidence but there is another possible question of law which arises from Mr Neeson’s ground of appeal. That question is whether, by failing to refer to these emails in its reasons, the Tribunal erred by giving inadequate reasons for its decision.

38 Legal principles. Section 89(2) of the ADT Act imposes a duty on the Tribunal to give reasons, either orally or in writing. Apart from the situation where a party requests written reasons for an oral decision, the Tribunal is not obliged by statute to give "adequate" reasons. Even though there is no statutory requirement governing the adequacy of reasons given under s 89(2), common law principles are relevant. At common law, there is now a judicial duty to give adequate reasons: see, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. Among other things, the requirement to give adequate reasons means that the decision maker must analyse the competing evidence and give reasons for accepting certain evidence in preference to evidence which contradicts that evidence: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]. There is no need for the Tribunal to refer to all the evidence in detail, especially where it is clear that the evidence has been considered: Beale v GIO (1997) 48 NSWLR 430 per Meagher JA at 442.

39 31 January 2007 email and constructive dismissal. At [58] the Tribunal concluded that Mr Neeson had not been ‘constructively dismissed’ when he resigned in February 2008. Mr Neeson submitted that there was evidence before the Tribunal which contradicts that finding, in particular an email dated 31 January 2007 from Mr Houlahan to Mr Hankin. The email outlines events since the end of 2006 when Mr Neeson was advised of the need for an informal program to improve his efficiency as a teacher. The email noted that despite developing such a plan, Mr Neeson indicated at the beginning of 2007 that he would not participate in it because it was too formal. The email then went on to make the following comments:

Other issues

He turns 75 on Monday
He is giving no indication of retiring – quite the opposite
He has approximately 14 months LSL
He is currently on WC and a review is to occur soon
The AP and myself are concerned for his ‘efficiency’ currently

My first thought was to say that attempts to engage an informal program have been unsuccessful and that it will now be a ‘formal’ program and begin it immediately.

Your thoughts on this or alternative ideas are most welcome.

40 The Tribunal held at [58] that:

58 In relation to his claim of constructive dismissal, the Tribunal does not accept that the actions of the school were designed to or had the effect of inducing him or forcing him to retire. The Tribunal accepts the submissions made by the respondent that it was the applicant’s attitude towards the complaints made, his failure to accept support and co-operate with programs designed to assist him improve and his avoidance and denials which led him to the path which evolved in 2006 and 2007.

41 Conclusion. The Tribunal did not refer to the 31 January 2007 email in its reasons. However, that email was not relevant to the issue of whether Mr Neeson was constructively dismissed because he was not aware of it at the time he resigned. Consequently, it could not have had the effect of inducing or forcing him to take that course and the Tribunal’s failure to refer to it does not mean that its reasons are inadequate.

42 31 January 2007 email and causation. At [47] the Tribunal concluded that:

There is no evidence before the Tribunal that the applicant was treated less favourably than a younger person in the same or similar circumstances or that that treatment was because of his age.

43 The treatment to which the Tribunal is referring in this paragraph includes the requirement to attend formal meetings, being placed on the teacher improvement program, the writing (but not sending) of a referral letter to HealthQuest and refusing to re-employ him as a casual teacher after his retirement. Mr Houlahan said that he referred in the email to Mr Neeson’s age and the fact that he was not retiring as factual matters that were relevant because Mr Neeson’s teaching efficiency was problematic and unresolved. Because Mr Neeson was not retiring, he had to take steps to address his poor performance. The Tribunal apparently accepted that evidence because it did not refer to the email in its decision. Again, that does not mean that its reasons were inadequate.

44 4 June 2007 email. A second email was sent by Mr Hankin to Mr Houlahan on 4 June 2007. It is set out, in part, at [15] above. Mr Hankin gave the following evidence about this email:

The golden bridge reference is terminology which is used as standard terminology in mediation processes. It is a term which implies, “Let’s find a resolution to a very difficult problem which allows both parties to, in the basic sense, have a win/win situation.”

The golden bridge over which one can retreat is to provide an opportunity for somebody to perhaps step back from their current position, but to do so with dignity. That’s the aspiration I had for Mr Neeson through all of this, and that’s the context of that particular email.

45 By implication, the Tribunal accepted this evidence though the reasons do not record that fact. As we have said, there is no need for the Tribunal to refer to every piece of evidence in the proceedings. While Mr Neeson placed great significance on this and other emails, the Tribunal was not persuaded that they supported Mr Neeson’s case. The Tribunal gave adequate reasons for its decision and there was no need for it to refer in detail to every email that Mr Neeson regarded as significant.

46 Having found that the Tribunal made no errors of law, we turn now to consider whether to grant leave for the appeal to be extended to the merits of the Tribunal’s decision.

Appeal on the merits

47 Principles for granting leave to appeal on merits. It is not necessary for the Appeal Panel to first identify an error of law before leave can be granted: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. Leave will be granted if, for example, the Tribunal has gone about its fact finding in such an unfair or unorthodox manner that the Appeal Panel is justified in re-hearing or remitting some or all of the case: K v K [2000] NSWSC 1052 at [10] to [15]. The effect of granting leave for an appeal to extend to the merits of the Tribunal’s decision is that the Appeal Panel would determine the case, or part of the case, again on the basis of the evidence used in the first instance hearing, together with such additional evidence as it thinks fit to receive: ADT Act, s 114 and Hans v Building Professional Board [2008] NSWADTAP 13 at [94] to [96].

48 Further evidence. In addition, in his submissions to the Appeal Panel, Mr Neeson attached documents which had not been tendered in evidence before the Tribunal although they were in existence at that time. If leave is granted, we must also decide whether to admit the additional evidence on which Mr Neeson now seeks to rely.

49 Corrections and Omissions. Mr Neeson provided a document entitled “Chronology of Corrections and Omissions” in which he detailed numerous ‘omissions’, some ‘serious’, in the Tribunal’s reasons. Some of the omissions related to the lack of detail which Mr Neeson considers should have been included to give a more accurate impression of what had occurred. He re-wrote certain paragraphs of the decision using the words he says should have been used. At [3] to [32] the Tribunal set out a chronology of events. That chronology was intended to provide background information as to the circumstances in which Mr Neeson made his complaints. We appreciate that Mr Neeson may feel that the Tribunal has not recorded the evidence in a way which reflects every relevant detail of what happened and that the lack of detail gives an incomplete or misleading impression of what actually occurred.

50 However, Mr Neeson has not satisfied us that the re-worded paragraphs would have made a difference to any of the Tribunal’s findings as to age or disability discrimination or victimisation. In relation to submissions that the Tribunal did not refer to parts of his evidence or submissions, the Tribunal does not make an error of law by failing to refer to all the evidence: Beale v GIO (1997) 48 NSWLR 430 per Meagher JA at 442. While a decision maker should refer to relevant evidence, it is only where evidence that is important or critical is not referred to that it will be implied that the evidence was overlooked or not considered. The Tribunal is not required to list each piece of evidence that it took into account in coming to its determination on the facts: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] NSWLR 378 at 385-6.

51 Mr Neeson alleged that he was allocated the more difficult students as part of a campaign to terminate his employment. The Department led evidence from the Principal and the Assistant Principal about the allocation of students. At [50] the Tribunal accepted the evidence of the Principal and the Assistant Principal that it was the Assistant Principal and not Mr Neeson who was assigned the greater proportion of low performing students. That finding was open on the evidence and meant that the conduct about which Mr Neeson had complained did not occur. It was consequently unnecessary for the Tribunal to determine whether that conduct was unlawful.

52 Others ‘omissions’ relate to the alleged failure of the Department to adhere to various policies or procedures. We understand that Mr Neeson feels aggrieved because he regards the Department as having failed to comply with some of its own policies and procedures. However, even if those concerns are justified, they do not warrant the Appeal Panel re-hearing the case. That is because none of these concerns would have led the Tribunal to make a different decision. The details which Mr Neeson wants recorded do not relate to factual matters which were in dispute. Nor was any lack of compliance with practices or procedures an issue. In relation to Mr Neeson’s concerns about his teaching efficiency, the Tribunal made no finding about Mr Neeson’s efficiency as a teacher. Rather, it was satisfied that the Department took the steps that it did solely to manage the large number of complaints by parents about Mr Neeson’s classroom teaching and not because of his age.

53 Some of Mr Neeson’s concerns related to so called ‘factual errors’ which require more detailed consideration. The first ‘factual error’ that the Tribunal was said to have made was to find that a letter referring Mr Neeson to HealthQuest for a medical examination was never sent. The background to this issue is that on 6 August 2007 Mr Neeson went on sick leave for 49 days. Mr Neeson says that Mr Hankin falsely stated under oath that the HealthQuest referral was only being discussed and had not been sent. He says the referral was sent after the Teachers Federation stopped the Teacher Improvement Program. Mr Neeson provided the Appeal Panel with a letter sent to him by Alexis Malcolm which he says confirms that the letter was sent to HealthQuest.

54 The Department’s response was that the Tribunal’s finding that the letter had not been sent was based on evidence from Mr Hankin and Mr Houlahan. Mr Hankin gave evidence that to his knowledge Mr Neeson was never referred to HeatlhQuest. Mr Houlahan gave evidence that the HealthQuest referral was never progressed because Mr Neeson resigned before the referral was processed. Mr Neeson agreed that he was never examined by a doctor from HealthQuest but says that if the Department’s ‘plan’ did not work, they would have sent him to HealthQuest. The plan was said to be to put Mr Neeson on a Teacher Improvement Program and then send him to HealthQuest if he was not performing.

55 As the letter from Alexis Malcolm was not in evidence and, in any case, does not demonstrate unequivocally that HealthQuest received a letter of referral, there is no error of fact or law in relation to the Tribunal’s finding.

56 The second factual error was said to be that there was reference in the letter to HealthQuest that falling asleep was an issue when Mr Neeson denies ever having fallen asleep while on duty. Mr Houlahan gave evidence that Mr Neeson had fallen asleep in staff meetings and at school development days but when cross examined said that the accusations were so minor that he did not speak to Mr Neeson about them. However, in the letter of referral to HealthQuest Mr Houlahan mentioned ‘sleeping’ as an issue. Mr Neeson sees it as contradictory for Mr Houlahan to have said in evidence that sleeping was a minor issue and then raising it in the letter to HealthQuest. This submission does not raise any issue with the Tribunal’s findings of fact. At its highest it is a matter about which Mr Houlahan could have been questioned.

57 The third matter raised by Mr Neeson was that the Tribunal should have taken into account his past exemplary teaching career in its reasons. Mr Neeson gave evidence that this was the first time a Principal had complained about him. Mr Neeson questioned Mr Hankin about a comment he had made in an email dated 9 February 2008. In that email Mr Hankin said, in part:

Given the anticipated conclusion to years of struggle to help Mr Neeson see the folly of his efforts to continue in a full time teaching role, I just wanted to thank you all for your contributions. To Kiernan especially, your capacity to put the interests of students and staff above the endless tension caused by Mr Neeson’s intimidatory and irrational behaviour is a real credit to your professionalism. I am quiet sure that your predecessors were (understandably) not able to grasp that very sharp nettle.

58 In reply to a question from Mr Neeson in cross examination about the ‘very sharp nettle’ comment, Mr Hankin said that over a number of years Mr Neeson had virulently attacked anybody who dared to criticise him.

59 The Department’s response to Mr Neeson’s submission was that it accepted that Mr Neeson had never been subject to any disciplinary action prior to these events but that Mr Hankin’s evidence provides an explanation for his ‘sharp nettle’ comment. No error of law or fact is disclosed.

60 Finally, Mr Neeson says that part of the Tribunal’s decision is misleading because it omits various events and is written in a way which implies wrongdoing on Mr Neeson’s part. This submission relates to [17] and [18] of the decision:

17 On 20 November 2006 a meeting was held to discuss, among other matters, the parental complaints received. The applicant, a representative from the Teachers Federation and the Assistant Principal and the Principal attended that meeting. The applicant was advised that informal support including the Employee Assistance Program would be offered to him, but if there was no improvement there would be consideration of placing him on the formal teacher improvement program.

18 The applicant took sick leave from that day 20 November 2006 for eleven days.

61 According to Mr Neeson, the Tribunal should have mentioned the fact that Mr Houlahan had assured him that his teaching efficiency was not in question. Mr Neeson also said that the second sentence in [17] should have been a new paragraph because it happened a week later, not at the meeting. In addition, [18] should have been preceded with the words, “The applicant, who had been injured in a school accident the previous Friday, attended the meeting walking with the aid of a walking stick and because he had been injured on the job resumed medically certified WorkCover leave for the next 11 days.” The way the decision had been written suggested a particular timing of events which was Mr Neeson said was incorrect. It also cast him in a negative light because it reads as if he took sick leave as a result of the meeting. According Mr Neeson, he never avoided any meetings, he was simply directed by the Teachers Federation not to attend them.

62 Even if all Mr Neeson’s points about the meaning conveyed by [17] and [18] of the Tribunal’s decision are correct, none is relevant to any issue in dispute in the proceedings.

Further evidence

63 Mr Neeson sought to tender further evidence to the Appeal Panel in support of his submission that parental complaints should not have been accepted in evidence by the Tribunal. The evidence on which Mr Neeson relied are the following documents titled ‘PC’ (“Parental Complaints):

PC1: letter from the Registrar to Mr Neeson dated 23 June 2009 advising him that his application for the parent complaints not to be admitted into evidence would be determined at the hearing.

PC2: letter from the Department’s solicitors to the Registrar dated 2 July 2009 opposing Mr Neeson’s application to issue summonses for four parents to attend and give evidence.

PC3: document produced by NSW Teachers Federation dated April 2002 entitled ‘Teachers Rights, Suggestions, Complaints and Allegations’

PC5: T.A.R.S. Report for Bruce Neeson dated 11 August 2006 signed by ‘Andrew’

PC6: Card containing message from Bob and Liz Murtha on the occasion of his retirement.

PC7: email from Julie Smout, librarian, to Mr Neeson on 28 April 2008.

PC9: handwritten note from ‘Keith’ to Mr Neeson relating to the 2003 school year.

64 In addition, Mr Neeson sought to rely on other evidence which was not before the Tribunal. He referred to those documents as CHR (Chronology). The relevant documents are CH1, CH2, CH3, CHR5, CHR6 and CHR9. Mr Neeson submitted that CH1 was in evidence (Exhibit 1, item 5), as was CH2 (Exhibit 3 refers to that document), CH3 (Exhibit C, folder 2, Document 25), CH5 (quoted in Exhibit 2), CH6 (referred to in Exhibit 3) and CH9 (excerpts quoted in Exhibit 2 and referred to in Ex C vol 2).

65 Mr Neeson has submitted that documents were in evidence when excerpts from those documents were quoted in submissions or the document was referred to in material he filed with the Tribunal. Mr Neeson may not have understood that submissions are not evidence and are not given an exhibit number. He may also not have appreciated that referring to a document in a submission does not mean that the document is in evidence.

66 Legal principles. The principles relevant to the issue of whether further evidence should be admitted were summarised by the appeal Panel in Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 at [53] to [57]. Paragraph [55] has been omitted because it is not relevant to these proceedings:

53 First, the provisions regarding internal appeals in Part 1 of Chapter 7 of the ADT Act sufficiently imply, without stating expressly, that an Appeal Panel has power to grant leave of this nature, whether or not it has given consideration to the question whether the decision under appeal contains errors of law. Specific authority for this is to be found in Law Society v Young (No 2) at [27 – 30].

54 Secondly, if the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be ‘affirmatively satisfied’ that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was ‘likely to have produced a different result’. This criterion appears in the paragraph just quoted from CDJ v VAJ . The applicant for leave does not have to show that if the evidence had been put before the Tribunal, an ‘opposite result would have been produced’ or it would have been ‘unreasonable to suppose the contrary’ (see the passage from Council of the City of Greater Wollongong v Cowan that the Appeal Panel in Young quoted at [21]). But it is not enough merely to show that the further evidence is ‘useful’, or that its admission would have given rise to a ‘real chance’ that the Tribunal would have reached a different decision (see CDJ v VAJ at [151]; Young at [31]).

. . .

56 Fourthly, the stress, inconvenience, uncertainty and additional financial cost to the parties that would be occasioned by a grant of leave must be taken into account (see CDJ v VAJ at [149]).

57 Fifth and finally, unless the further evidence in respect of which leave is sought was deliberately withheld from the hearing conducted by the Tribunal, ‘the failure to call the evidence even it could have been discovered by the exercise of reasonable diligence may be of little significance’ (see CDJ v VAJ at [116]).

67 Conclusion. Mr Neeson had ample opportunity during the hearing to tender all the evidence he wanted the Tribunal to take into account. Having read the Tribunal’s decision, and the parties’ submissions, we are not persuaded that we should grant leave for the appeal to be extended to the merits. Since there will be no re-determination of the merits of the appeal, there is no basis on which new evidence should be admitted.

Other grounds

68 Four of Mr Neeson’s grounds of appeal do not identify a question of law or provide a reason for extending the appeal to the merits of the Tribunal’s decision. Firstly, he said that the Tribunal erred by not accepting that his victimisation complaint had been substantiated when a differently constituted Tribunal had amended his complaint to add victimisation: AD Act, s 103. In Neeson v Director-General, NSW Department of Education and Training [2008] NSWADT 330 (10 December 2008) the Tribunal decided that the proposed amendment does not appear futile. The Tribunal added that:

15 Whether the Tribunal ultimately accepts the stated reason for the decision to refuse Mr Neeson’s application is a matter for the evidence and in my view it would be premature at this stage of proceedings, before the filing of any evidence, to determine that issue. While no direct evidence that the offending decision was ‘on the ground of’ Mr Neeson having made a complaint and initiated proceedings in the Tribunal, it is arguable that there is some evidence form which this could be inferred, namely the statement contained in the email from Mr McGrath.

69 Mr Neeson interpreted this passage as a finding by the Tribunal that he had proved his complaint of victimisation on the balance of probabilities. Contrary to Mr Neeson’s understanding, this was not what the Tribunal said, nor was it the Tribunal’s role to come to a view as to that matter at that time. The same observation applies to Mr Neeson’s misunderstanding that by referring his complaint to the Tribunal, the President of the Anti-Discrimination Board had formed a view that the allegations of discrimination had been proved.

70 Secondly, Mr Neeson relied on an email dated 19 September 2008 in which Mr McGrath sated that ‘any decision regarding an approval to teach will depend on the outcome of current proceedings’. Mr McGrath gave evidence that the sentiment he meant to convey in the email was that a decision had already been made refusing Mr Neeson’s request for casual teaching on the grounds that his performance remained an issue as at the date of his retirement and that it would only be revisited if there was an order from the court to do so. Mr McGrath gave evidence which the Tribunal accepted that as at 31 July 2008 when he wrote the letter rejecting Mr Neeson’s request for casual employment he was unaware that Mr Neeson had complained of discrimination.

71 Mr Neeson said that when Mr McGrath gave evidence he was no longer a Departmental employee. He had advised Mr Neeson that any decision would depend on the outcome of current proceedings. In evidence, Mr McGrath explained that if he was advised by the Tribunal to issue Mr Neeson with an approval to teach, he would be bound by such an order. He added that the decision not to issue Mr Neeson with an approval to teach was made in consultation with the Manager of the Staff Efficiency and Conduct Unit.

72 Counsel for the Department pointed out that Mr McGrath refused Mr Neeson approval to teach at a time when he did not know that he had complained to the President of the Anti-Discrimination Board. The letter he had written to Mr Neeson about the outcome of current proceedings was written long after the decision to refuse to re-employ him had been made.

73 Thirdly, Mr Neeson submitted that the details of the Teacher Improvement Program did not feature enough in the Tribunal’s decision.

74 Fourthly, Mr Neeson alleged in his written submissions to the Appeal Panel that the complaint made by five parents dated 19 July 2007 breached the Department’s protocols about privacy. These allegations were not raised before the Tribunal at first instance and, in any case, there is nothing in the AD Act which makes it unlawful for a parent to breach a Departmental protocol. We have not taken into account the documents attached to that part of Mr Neeson’s submission because they were not in evidence before the Tribunal. These grounds of appeal are misconceived.

Costs

75 Any application for costs should be filed and served within 21 days of the date of these reasons. Any submissions in reply to such an application should be filed and served within a further 21 days. Any such application will be made ‘on the papers’ in accordance with s 76 of the ADT Act.

1. Leave is refused for the appeal to extend to the merits of the Tribunal’s decision.

2. The appeal is dismissed.