Nicholls v Director General, Department of Education and Training

[2010] NSWADTAP 35

Appeal Panel - Internal

CITATION:	Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35
PARTIES:	APPELLANT David Nicholls Donna Nicholls RESPONDENT Director General, Department of Education and Training
FILE NUMBER:	109006
HEARING DATES:	23 April 2010
SUBMISSIONS CLOSED:	23 April 2010
EXTEMPORE DECISION DATE:	23 April 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Lowe A - Non-Judicial Member
CATCHWORDS:	APPEAL - identification of question of law - no error of law
DECISION UNDER APPEAL:	Nicholls v Department of Education and Training, unreported 21 October 2009
FILE NUMBER UNDER APPEAL:	091036, 091037
REPRESENTATION:	APPELLANT In person RESPONDENT E Brus, counsel
ORDERS:	1. Leave is refused for appeal to extend to the merits of the Tribunal’s decision 2. The appeal is dismissed.

REASONS FOR DECISION

1 HER HONOUR: The decision is that the appeal is dismissed. We are going to give some short reasons for that decision.

2 The background to this appeal is that Mr and Mrs Nicholls were teachers in a school in New South Wales and they brought complaints of race discrimination and victimisation against the Department of Education and Training. The complaints were heard by the tribunal and were dismissed. Mr and Mrs Nicholls appealed to the Appeal Panel against the tribunal's decision. The main issue that arose on that appeal was the test that the tribunal had applied in relation to victimisation complaints. The tribunal had applied a test that the link between the making of a complaint and any detriment which followed had to be a ‘substantial reason’. On appeal the Appeal Panel said that that was the incorrect test and it was sufficient if the link between a complaint and a detriment was one of the real or genuine reasons. The Appeal Panel remitted the matter to the tribunal who re-decided some of the victimisation claims applying the test that the Appeal Panel had articulated in its decision. The tribunal came to the same conclusion after applying that test, that is, that the remaining complaints of victimisation were dismissed.

3 Mr and Mrs Nicholls have appealed against the second tribunal decision on a question of law and have also sought leave for the appeal to be extended to a review of the merits of the tribunal's decision. The Nicholls have set out in the notice of appeal several bases for their appeal. Firstly, that the tribunal was selective in looking at the evidence and if they had applied the balance of probabilities test fairly and appropriately they would have found that there was a causal connection between the complaints and the detriment. The second ground was that the tribunal was biased or acted in a procedurally unfair way in a number of matters. The third ground was that some findings that the tribunal made in their first decision were inconsistent with findings made in the final decision.

4 Looking at each of those three grounds the first ground, which was that the tribunal was selective in looking at the evidence, does not, in our view, identify a question of law. There is a question of law identified if there is no evidence to support a finding of fact by the tribunal. That was not the case in relation to the tribunal's second decision. The tribunal went carefully through the evidence that it had taken into account and made a decision on the basis of that evidence. Consequently the short answer to the first ground of appeal is that it does not identify a question of law, nor is there any basis on which the Appeal Panel is satisfied that an error of law has been made.

5 The second ground of appeal does identify a question of law and that is whether the tribunal was biased in reaching its conclusion and/or whether it was in breach of procedural fairness. The Nicholls pointed to several factors which they said indicate bias. The first was that at the directions hearing on 3 June 2009 each party was given eight weeks to file and serve submissions. The tribunal asked the respondents to file their evidence first so that the Nicholls would have a basis on which to respond. The Department's submissions were filed ten days late leaving the Nicholls with less time than the full eight weeks to file and serve their submissions. On the application of the Nicholls the tribunal extended the time for filing their submissions by one week giving them, the Nicholls say, forty-five days as against sixty-nine days for the Department to file their submissions. According to the Nicholls that was insufficient time to prepare and provide those submissions to the parties and the tribunal. The second basis on which the Nicholls said that the tribunal was biased was that they were not given a list of exhibits that had been provided in the proceedings. The third basis was that the tribunal advised them that they could seek advice from a duty solicitor employed by the Legal Aid Commission and that while they had an hour long conversation with that solicitor, the solicitor did not get back to them after that time. The fourth basis was that the Nicholls were unaware that they could have applied to the tribunal for a transcript of the hearing on 21 October and that the Department obtained tapes of the hearing from the tribunal and transcribed those tapes themselves. Finally the tribunal members appeared to be taking notes during the Department's submissions, whereas they were not taking notes to the same degree while the Nicholls were speaking.

6 The test for apprehended bias is that there is conduct of the tribunal that might have led a fair minded lay observer to apprehend that the tribunal might not bring an impartial mind to the resolution of the question it was required to decide. Actual bias occurs when there is evidence that the tribunal did not bring an impartial mind to the question it was required to decide.

7 None of the matters raised by the Nicholls has any bearing on a question that the tribunal was required to decide in the proceedings. They all relate to procedural matters, not to a substantive issue that the tribunal was required to determine. A fair-minded lay observer who knew of the matters that we have listed would not form a view that the tribunal might not bring an impartial mind to those matters. In our view these were either matters that were outside the tribunal's authority (such as the behaviour of the duty solicitor and the right to a transcript, which is a matter for the Registry) or were insubstantial and not able to affect to tribunal's decision. An example is the relatively small difference in the number of days that the Nicholls were given to provide their submissions.

8 The third ground of appeal is that, despite the tribunal making findings in relation to causation for claim one and claim two in the first decision, the tribunal made a decision in the second decision that was inconsistent with those findings. We have read the tribunal's first and second decisions in their entirety and are satisfied that the tribunal applied the correct test that the Appeal Panel identified in its reasons for decision. The tribunal had all the evidence that was admitted in the proceedings before it and there is no basis for finding that the tribunal was unaware of some of that evidence or did not take it into account. The tribunal came to the same view in the second decision as it had in its first decision, that is, that on the balance of probabilities there was not the necessary causal connection between complaints that the Nicholls had made and the detriments that they had suffered. In our view there is no error of the law in the tribunal having reached that view, nor is there any inconsistency between their findings in the first decision and their findings in the second decision.

9 That leaves the question of whether or not we should give leave to extend the appeal to the merits of the tribunal's decision. We set out in our first decision the principles on which leave should be granted, including whether or not the tribunal has gone about its fact finding process in such an orthodox or unfair way that those findings should be revisited. We have listened carefully to the Nicholls submissions about two diaries that were in evidence and about other documents which they say the tribunal must have overlooked. While the tribunal did not refer specifically to those documents in its reason for decision that does not mean that they were not taken into account, nor are we persuaded that the material in those documents would have led the tribunal to reach a different view from that which they reached in the second decision. It is entirely orthodox for the tribunal to refer to specific evidence and not to other evidence in reasons for decision, especially when there is voluminous documentary evidence in the case.

They are our reasons for dismissing the appeal.