Paramasivam v Vice Chancellor, University of New South Wales

[2003] NSWADTAP 2

Appeal Panel - Internal

CITATION:	Paramasivam -v- Vice Chancellor, University of New South Wales [2003] NSWADTAP 2
PARTIES:	APPELLANT Gaja Lakshmi Paramasivam RESPONDENT Vice Chancellor, University of New South Wales
FILE NUMBER:	029045
HEARING DATES:	07/02/2003
SUBMISSIONS CLOSED:	02/07/2003
DATE OF DECISION:	02/21/2003
DECISION UNDER APPEAL:	Paramasivam v University of New South Wales [2002] NSWADT 202
BEFORE:	Hennessy N - Magistrate (Deputy President); Grotte E - Judicial Member; Mooney L - Member
CATCHWORDS:	bias - Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - admissibility of evidence - jurisdiction - leave to extend to the merits - no evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	021036
DATE OF DECISION UNDER APPEAL:	10/16/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Laws v Australian Broadcasting Tribunal 1990 93 ALR 435 Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8
REPRESENTATION:	APPELLANT In person RESPONDENT J Oakley, barrister
ORDERS:	The appeal is dismissed.

1 On 16 October 2002, the Tribunal dismissed a complaint of race discrimination lodged by Ms Paramasivam against the University of New South Wales (the University). The complaint contained five allegations of discrimination, under the Anti-Discrimination Act 1977 (ADA), four of which related to Ms Paramasivam’s failure to be appointed to a position within the University. The other allegation related to the termination of her contract services. The Tribunal dismissed the complaint under s 111(1) of the ADA. That section states that:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

2 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Ms Paramasivam’s application for leave to extend the appeal to the merits of the Tribunal’s decision is dealt with below.

Grounds of Appeal

3 The Appeal Panel’s understanding of Ms Paramasivam’s grounds of appeal is as follows:

1. The Tribunal was biased and incompetent.
2. Each allegation was dismissed under s 111, yet the Tribunal accepted a submission by the University that the Tribunal lacked jurisdiction to entertain three of the allegations. In those circumstances it was not correct to dismiss the complaints under s 111. 3. Ms Paramasivam’s evidence was not taken at its highest level in accordance with the principles that should apply to s 111 applications.
4. The University referred to documents which were not relevant to the complaint.
5. The term “lacking in substance” relates to the complaint and not the evidence.
6. The Tribunal interpreted “lacking in substance” in the same context as “vexatious”. Ms Paramasivam denied that her complaint was vexatious.

4 Ms Paramasivam set out several passages from the transcript of the proceedings before the Tribunal which, in her view, demonstrated the Tribunal’s incompetence or bias. Ms Paramasivam also said that the Tribunal did not give her the same amount of time to present her submissions as it gave the University to present its case.

5 Even proven allegations of incompetence do not, in themselves, amount to an appellable error. Similarly, failure to afford roughly equal time to each party is not an appellable error. However, pursuant to s 72(4)(e) of the ADT Act, “The Tribunal is to take such measures as are reasonably practicable to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.”

6 The transcript reveals that Ms Paramasivam was given ample opportunity to present her submissions. The Tribunal consistently attempted to prevent her from making lengthy submissions in relation to irrelevant matters and to focus her on the issues in dispute. We can detect no error of law in the Tribunal’s approach.

7 Ms Paramasivam set out several passages from the transcript which she says establish bias on the part of Mr Bartley, the presiding member of the Tribunal. While these passages need to be read in full to understand the context, the following extracts demonstrate the flavour of Ms Paramasivam’s submission.

Mr Bartley: You have no degrees and no formal qualifications other than chartered accountancy.
Ms Paramasivam : No I do have.
Mr Bartley: Well, what other one have you got?
(and then later)
Ms Paramasivam : I’m, offended that you made that statement that I had no other qualifications.
Mr Bartley: You don’t have to be offended because I was trying to find out what you did have.
Ms Paramasivam: But you could have asked me, you could have asked me whether I had any other qualifications?
Mr Bartley: That’s right, yes. Keep going.

8 Later, Mr Bartley said:

Ms Paramasivam, would you please stop talking. You don’t listen to anything that’s being said to you from the bench today. You’re taking no notice of anything we’re saying to you. If you would just listen occasionally to what’s being said to you from the bench you could find it quite helpful but you seem to have a closed mind that if anyone puts anything to you you don’t agree with that’s the end of it.
Ms Paramasivam: I am listening sir, but . .
Mr Bartley: Madam, you are not. If you would listen to . . . .
Ms Paramasivam: If I don’t listen I cannot answer the points.
Mr Bartley: You don’t answer the point, you dodge around the point, you answer what you want to say.
Ms Paramasivam: If you want to discourage me that way that’s fine but I am also trying to tell you what the reality is.
(and later )
Ms Paramasivam: I think so. You have already discouraged me from doing it naturally.
Mr Bartley: Look, I don’t want you to be rude, thanks very much. When you come to a court –
Ms Paramasivam : No, because I am also offended. You gave Ms Oakley so long and I have been given only that and already you have discouraged me from . . .

9 We have read the transcript of the Tribunal proceedings and the passages from which Ms Paramasivam quoted in her submissions. Our assessment is that Mr Bartley attempted on several occasions to direct Ms Paramasivam to address relevant matters. It was his perception that she was not listening to the Tribunal’s comments and questions because she appeared not to respond to them directly.

10 The test to be applied in relation to the allegation of bias is whether the circumstances “would lead a fair minded observer to conclude that the members of the Tribunal . . . would bring other than an unprejudiced mind to the resolution of the issues . . . ” (Laws v Australian Broadcasting Tribunal 1990 93 ALR 435 per Mason CJ and Brennan J at 447). In our view, there is no basis on which a fair minded observer would come to that conclusion in this case.

Lack of jurisdiction

11 In relation to allegations 1, 2 and 3 the University submitted to the Tribunal that Ms Paramasivam had not lodged a “complaint” with the President of the Anti-Discrimination Board, within the meaning of that term in s 87 of the ADA. The Tribunal accepted that submission and noted that there was no complaint in writing of any alleged contravention of the ADA. The Tribunal did not expressly state that this meant that it had no jurisdiction to entertain those parts of the complaint. However, the Tribunal dismissed allegations 1, 2 and 3, apparently, though not expressly, pursuant to s 111(1).

12 Even when specifically asked, Ms Paramasivam did not submit to the Appeal Panel that the Tribunal had erred in law in accepting the University’s submission that allegations 1, 2 and 3 did not amount to a “complaint” under the ADA. It is our understanding of the decision that having decided that allegations 1, 2 and 3 did not amount to a “complaint”, the Tribunal decided, in the alternative, that those parts of the complaint comprising allegations 1, 2 and 3 should be dismissed under s 111(1) as “lacking in substance.”

13 A conclusion that the Tribunal lacks jurisdiction in relation to part of a complaint should result in a finding that the complaint was never properly before the Tribunal. A finding that part of the complaint is “lacking in substance” should result in it being dismissed. Either way, the complaint, or part of the complaint, is no longer before the Tribunal. In those circumstances, while the Tribunal may have erred in failing to expressly find that it had no jurisdiction in relation to three of the allegations, that error made no difference to the outcome of the proceedings.

Taking the applicant’s evidence “at its highest”

14 The notion of taking the applicant’s evidence “at its highest” comes from the Tribunal’s decision in Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35], where the Tribunal stated that:

In undertaking this examination we believe that the appropriate way forward is to take the Complainant's evidence at its highest point, or in other words, and for the purposes of this exercise, to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination.

15 Ms Paramasivam maintained that the Tribunal did not take her evidence at its highest because Ms Oakley, acting for the University, was permitted to express her opinions about the evidence. In relation to one of Ms Paramasivam’s job applications Ms Paramasivam quotes Ms Oakley as saying: “It is really containing criticism rather than a genuine job application.”

16 It is apparent from the transcript that Ms Oakley made submissions about the content of the evidence presented by Ms Paramasivam. In a s 111(1) application, parties are entitled to make submissions in relation to the nature and effect of the evidence. By taking into account such submissions, the Tribunal is not failing to accept the evidence, it is merely hearing the parties’ views on whether that evidence means that the applicant could, or could not, succeed in making out his or her case. In this case, no-one was cross-examined in relation to the evidence and there is no indication that the Tribunal did not accept it as true.

17 Ms Paramasivam also submitted that she was not permitted to summons witnesses from the University in support of her case. The transcript suggests that at the case conference convened by the Tribunal prior to the hearing, the parties identified certain documents and agreed that they would be the documents on which the Tribunal would make its determination under s 111(1). Ms Paramasivam said, at page 5, line 40 of the transcript:

Ms Paramasivam : Yes, but what I want to clarify is my understanding was when we agreed on those documents it didn’t bar me from questioning the people concerned mentioned in that document – in those documents.
Mr Bartley: It didn’t bar you from questioning but the situation was it was a convenient method of determining whether the complaint had any substance. Now, if you’ve agreed to something that in retrospect is against your interests, well, then the Tribunal would hear you on it . . .
Mr Bartley then explained that his understanding of the agreement was that witnesses would not be called. Ms Paramasivam said that it was her understanding that “in addition to the documents we also have to question the people who use the documents” but “. . . if that is not as per the law I’m quite happy to go along with you.”

18 The Tribunal may dismiss a complaint under s 111(1) “at any stage of an inquiry”. It is common practice to make a determination under s 111(1) either following a stand alone hearing convened for the purpose of considering whether the complaint should be dismissed, or following the presentation of the complainant’s case as part of the substantive hearing.

19 When determining an application under s 111(1), the Tribunal should give the complainant the opportunity to put forward his or her case. In the words of Sir Ronald Wilson, in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 at 78,900, “It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent.”

20 Section 111(1) reflects an intention on the part of the legislature that a respondent should not be put to the inconvenience and expense of defending an action where the complaint lacks merit. Ms Paramasivam’s submission that she should have been permitted to call employees of the University to give evidence cuts across that intention. The University should not be put to the inconvenience and expense of making its employees available to give evidence in circumstances where the complaint, even taken at its highest, lacks substance.

21 We are satisfied that Ms Paramasivam was given every opportunity to identify the subject matter of the complaint and produce all the documentary evidence she had available to her to support her claim. The Tribunal did not make an error of law in refusing to allow Ms Paramasivam to summons University employees to give evidence.

Relevance of documents referred to by the University

22 Ms Oakley, representing the University, conceded that she referred the Tribunal to certain documents which did not form part of Ms Paramasivam’s complaint. The documents to which Ms Oakley referred relate to complaints that Ms Paramasivam had made to the President of the Anti-Discrimination Board which had not been accepted because they occurred outside the statutory time period. (See s 88(3) and (4) of the ADA.) Ms Paramasivam submitted that the Tribunal made an error of law in allowing this material to be presented.

23 Ms Oakley pointed out that Ms Paramasivam had not objected to the University referring to the material at the time and the Tribunal did not specifically take it into account in reaching its decision. According to Ms Oakley, the documents represent just one example of Ms Paramasivam attributing blame for her treatment to something other than her race.

24 When the Tribunal was considering the University’s application under s 111(1), Ms Oakley accepted that the University carries the onus of proof. There is no indication from the Tribunal’s reasoning that it was persuaded that any part of the complaint lacked substance by virtue of documents which did not form part of the complaint. In those circumstances we are satisfied that the outcome would have been the same, whether or not Ms Oakley had referred to documents which did not relate to the complaints before the Tribunal.

Complaint must be lacking in substance

25 Ms Paramasivam submitted that since s 111(1) states that the Tribunal must be satisfied that “the complaint” lacks substance, it is not appropriate to focus on the evidence, as distinct from the complaint as a whole. This submission is misconceived. Contrary to Ms Paramasivam’s submission that the complaint is the experience of being discriminated against, the complaint, in legal terms, comprises the evidence that exists to support it. If that evidence does not support the factual allegations or, even if they do, if the factual allegations do not comprise a breach of the ADA, the complaint “lacks substance.”

Vexatious

26 The Tribunal found in relation to the second allegation that “The complaint is lacking in substance and is, in fact, bordering on being vexatious.” The Tribunal did not dismiss this allegation, or any other part of the complaint, on the ground that it was vexatious. Consequently, there is no need to address Ms Paramasivam’s submissions that her complaint was not vexatious.

Extension to the merits

27 Ms Paramasivam applied to the Appeal Panel for her appeal to be extended to the merits of the decision. As a threshold question, the Appeal Panel must be satisfied that the appeal raises questions of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. The approach that the Tribunal has consistently adopted in reaction to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that:

It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established.

28 Adopting this approach in the present case, we decline to extend the appeal to a review of the merits of the decision because no error of law has been established.

Order

29 The appeal is dismissed.