Rahman v New South Global Pty Ltd

[2005] NSWSC 1249

CITATION:	RAHMAN v NEW SOUTH GLOBAL PTY LTD [2005] NSWSC 1249
HEARING DATE(S):	14-16 November 2005
JUDGMENT DATE :	9 December 2005
JUDGMENT OF:	Hulme J at 1
DECISION:	See paragraph 33

PARTIES:	M Tabibar Rahman Institute of Languages New South Global Pty Ltd
FILE NUMBER(S):	SC 30105/04
COUNSEL:	Plaintiff: In person Defendant: G Carolan
SOLICITORS:	Plaintiff: In person Defendant: Bartier Perry

LOWER COURT JURISDICTION:

- 14 -

OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

Friday, 9 December 2005
30105/04

M Tabibar RAHMAN v INSTUTUTE OF LANGUAGES NEW SOUTH GLOBAL PTY LTD


JUDGMENT

1 HIS HONOUR: By Summons filed on 3 December 2004 the Plaintiff in these proceedings claimed:-

“1. The Appellant/Plaintiff seeks leave to appeal and appeal pursuant to Part 2, Div.6, s45, s105, s106 & s107 Supreme Act 1970 & Chapter 7, Part 2, s119 ADT Act 1977 against ADT decisions.
2. (Please see the attached sheet).”

2 There were two attached sheets. One extended to page 17 and the other contained a further 14 pages. Three decisions were identified as the subject of the appeal, these being:-

(a) One made on 5 November 2004 by the New South Wales Administrative Decisions Tribunal Appeal Panel (constituted by Magistrate Hennessy, Ms Britton and Ms Bolt).
(b) One of 7 November 2003 by the Administrative Decisions Tribunal Equal Opportunity Division (constituted by Messrs Innes and McDonald and Ms Quail), and
(c) One of 7 October 2003 of the New South Wales Administrative Decisions Tribunal Appeal Panel (constituted by Magistrate Hennessy, Professor Reece and Ms Antonios).

3 It appears that the origin of events which led to the proceedings before the Administrative Decisions Tribunal (hereinafter referred to as ADT) and now this Court lay in a requirement of the Department of Education and Training, by whom the Plaintiff was employed for a time and with whom he wished to continue employment, that the Plaintiff who is not a native born Australian undergo a test called the “Professional English Assessment for Teachers” sometimes called “PEAT”. This he did on 27 October 2001.

4 He received a test result on 7 November and, to quote from his Summons, “was really shocked and surprised”. He applied for a re-mark and while there was some change, the result did not satisfy him and was apparently not sufficient for his employment to continue. On 7 January 2002 he wrote to the Anti-Discrimination Board. The heading indicates the flavour of much of the contents of the letter:-

“In justice, hidden illegal/illicit practices in the Examination Assessment Criterion and Racial Biases for the “Professional English Assessment for Teachers – (PEAT)” by the Institute of Languages The University of New South Wales.”

5 On or about 14 November his complaint to the Anti-Discrimination Board was rejected, a letter of that date from the President of the Board observing:-

§ “It is my view that Mr Rahman is mistaken in his allegations that he was discriminated against by the UNSW on the ground of his race…

§ Mr Rahman has failed to show that he was treated less favourably than other test cohorts who undertook the PEAT exam, or that the assessment criteria used by the UNSW had a disparate impact upon him because of his race.

§ As such, his complaint presents less than a remote possibility of merit and should therefore be declined as misconceived and lacking in substance under Section 90(1) of the NSW Anti-Discrimination Act, 1977.”

6 On 30 November 2002 the Plaintiff required referral of his complaint to the Equity Opportunity Division of the ADT. Section 94 of the Anti-Discrimination Act as it then was provided for such to occur.

7 It is clear that there were difficulties there, even at an interlocutory stage. The judgment of the ADT Appeal Panel of 7 October 2003 records that those proceedings were an appeal from certain interlocutory decisions of the Equal Opportunity Division. The reasons record that written submissions provided by the Plaintiff, which the Panel took as the basis for his appeal dealt with the following points:-

1. Refusal to grant an adjournment of the proceedings.
2. Referral of matter to mediation without consent.
3. Carol Kirby’s representation of New South Global Pty Ltd.
4. Failure to deal appropriately with the non-production of documents under Summons.
5. Bias of judicial member Graeme Innes.

8 The Reasons also record that at an early stage the University of New South Wales had submitted that the proper Respondent to the proceedings was New South Global Limited and not the Vice Chancellor of the University, that the legal representative of New South Global Limited had indicated that the Institute of Languages was a part of that company albeit the company was wholly owned by the University, that the company was substituted as Respondent and that the Plaintiff had agreed to that change. It is not a matter that I have to decide but some confusion by the Plaintiff as to the identity of the proper Respondent is understandable. Two booklets entitled “PEAT… Information for Candidates and Exemplar” gives the firm impression that the test is conducted by a body or group going by the name “Institute of Languages” and that that body forms part of the University of New South Wales. The booklets seem to make no mention of “New South Global…”

9 The Reasons of 7 October deal with each of the 5 points listed above, holding that they were not made out and the Panel’s order was that the appeal be dismissed.

10 The decision of 7 November 2003 was by the Equal Opportunity Division of the ADT and dealt with the substantive issues involved in the Plaintiff’s appeal to that body. It is apparent from the reasons given that evidence was given by the Plaintiff, a Kathleen Lane and a Dr Jill Murray. The Tribunal also had before it a number of documents including the assessments made by various markers who had marked the Plaintiff’s test. The Tribunal made findings as to this evidence and concluded that there was no basis for the Plaintiff’s allegations of discrimination and dismissed his complaint.

11 The Plaintiff again appealed and the decision of 5 November 2004 by the ADT Appeal Panel records the result of that appeal and the Panel’s reasons for it. It is convenient to quote or summarise at a little length, and by reference to the headings and paragraph numbers in those Reasons, the more salient of the Panel’s conclusions.

Introduction

3. The Panel took the view that a number of issues raised by the Plaintiff had already been determined on 7 October 2003 and the Plaintiff was not entitled to re-agitate those matters.
Application to Disqualify for Bias

4. The Plaintiff sought that the presiding member Magistrate Hennessy disqualify herself, she having been party to the decision on 7 October 2003 and, according to the Plaintiff had made numerous significant errors and was therefore biased. The Panel concluded that “Disagreement with the content of a decision is not a sufficient basis for a decision maker to be disqualified on the ground of either apprehended or actual bias and the application is refused”.

Name of Respondent

5. “Mr Rahman submitted that the correct name of the Respondent was Institute of Languages, New South Global Pty Ltd. We agree that the Respondent is New South Global Pty Ltd. We also accept that the company trades as Institute of Languages. The Tribunal, in its reasons, omitted the word “Pty” from the Respondent’s name in the proceedings at first instance. That omissions is not of sufficient importance to constitute an error of law.”

Tribunal Biased

6. “Mr Rahman alleged that the Tribunal was biased. A similar submission was rejected by the Appeal Panel in (on 7 October 2003). Mr Rahman did not raise any new grounds for disqualification for bias in this appeal, except to say that a “subtle inner subconscious revengeful mind has worked in Mr Innes’ mind. We are not satisfied that the Tribunal erred by failing to disqualify itself for bias, assuming that such an application was made.”

Insufficient Regard to Facts and Law

7. “Mr Rahman submitted that the Tribunal erred because the decision was not based on all the relevant facts and any written or unwritten law. He incorrectly identified s115 of the ADT Act as the provision which obliges the Tribunal to have regard to all relevant facts and law. That provision is not relevant unless the Appeal Panel decides to extend the appeal to the merits of the Tribunal’s decision. The correct provision is s89(3) of the ADT Act which obliges the Tribunal to set out in its written reasons:
(a) The findings on material questions of fact, referring to the evidence or other material on which those findings were based;
(b) The Tribunal’s understanding of the applicable law.
(c) The reasoning processes that lead to the Tribunal to the conclusions it made.”
8. “Having carefully read the reasons given by the Tribunal we find no basis for the submission that these matters were not set out.”

Summons

9. “Mr Rahman has consistently complained the New South Global Pty Ltd did not produce certain documents in response to the summonses he issued. The respondent claimed that some documents had been inadvertently destroyed. Mr Rahman has previously appealed to the Appeal Panel in relation to the response to the summonses he issued. The Appeal Panel determined that issue on (7 October 2003). Mr Rahman is not entitled to re-agitate that issue before this Appeal Panel.”
10. “Mr Rahman also submitted that the fact that New South Global Pty Ltd destroyed documents when they were on notice that he was intending to complain about their treatment of him, constitutes discrimination on the ground of race. Since the Respondent’s conduct in destroying certain documents was not part of Mr Rahman’s complaint to the Anti-Discrimination Board, the Tribunal had no jurisdiction to entertain it and it is not a matter that can be raised before the Appeal Panel. (Anti-Discrimination Act 1977 s96; Commissioner of Police, New South Wales Police Service v Orr (EOD [2001] NSWADTAP 16 at [14] to [17].)”

Representation of the Respondent

11. This paragraph deals with the complaint by the Plaintiff that the Tribunal erred by allowing Miss Carol Kirby, a legal officer with the University of New South Wales, to represent the Respondent without obtaining the Tribunal’s leave. The panel held that the relevant statutory provision was s101(1)(b) of the Anti-Discrimination Act which provided that a party “may, by the leave of the Tribunal, be represented by a solicitor, by Counsel or by an agent”, that the submission had been dealt with on 7 October 2003 wherein it had been held that the Tribunal had impliedly granted leave for the Respondent to be represented by a solicitor, and those Reasons applied equally to the proceedings under appeal.
12. “Mr Rahman also submitted that Miss Kirby, as an employee of the University of New South Wales, was not entitled to represent New South Global Pty Ltd. There is no substance to that submission and it has already been rejected by the Appeal Panel in the previous appeal.”

Other Submissions

13. “Mr Rahman made several other submissions which are wholly irrelevant to the question of whether the Tribunal has made an error of law. Those submissions include a submission that the President of the Anti-Discrimination Board did not conduct an adequate investigation into his complaint.”

Extension to the Merits

14-16 In these paragraphs the Panel says that the Plaintiff’s grounds of appeal refer to several factual matters that he had alleged that some of the factual findings by the Tribunal were incorrect, and sought to introduce fresh evidence. The Panel went on to say that the Plaintiff had not identified an error of law and because of that and because there were no other reasons the Panel found persuasive, they declined to give him leave to appeal against the merits of the Tribunal’s decision.

12 The Appeal Panel went on to order that the application that Magistrate Hennessy be disqualified for bias be dismissed, that the Tribunal’s decision be affirmed and the Plaintiff’s appeal be dismissed.

13 The Plaintiff’s right to appeal to this Court is provided for by s119 of the Administrative Decisions Tribunal Act which, so far as is relevant, provides:-

(1) A party to proceedings before a Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.
(1A) Despite sub-section (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:
(a) an interlocutory decision.
(b) …
(3) An appeal by a person under this Section must be made:
(a) Within such time and in such manner as is prescribed by rules of court made under the Supreme Court Act 1970, or
(b) Within such further time as the Supreme Court may allow.

14 At the time the Plaintiff commenced proceedings in this Court, Part 51A Rule 3 of the Supreme Court Rules provided that such an appeal must be instituted within 28 days from the date when the decision appealed from was made or such extended time as the Court might fix. The Plaintiff’s appeal against the decision on 5 November 2004 was thus within time, his appeal against the other decisions was not. The Plaintiff did not suggest that he had obtained, or indeed sought, any extension of time within which to appeal from the earlier decisions. In these circumstances it is appropriate for me to concentrate attention, at least in the first instance, on the decision of 5 November 2004.

15 However, before I turn to that it is appropriate to refer to some other matters. Three Notices of Motion have been filed in this Court. The first was filed on 7 March 2005 and in it the Plaintiff sought:-

“An “Amendment for: Addition of the name of the Respondent-Institute of Languages New South Global Pty Ltd’s Directors”:
John E Ingleson (dob. 17/03/46), Mark S. Wainwright (dob. 20/10/43), Wyatt R. Hume (dob. 04/01/45), Lynn (dob. 26/11/41) and Marinna Moustafine (dob. 07/05/54).”

16 In the second, also filed by the Plaintiff, on 7 June 2005 the Plaintiff sought orders:-

“1. An order for Contempt of Part 37, s27.6 r. (5) – Compliance with Subpoena – Under Part 37, s37.12 – Supreme Court Rules 1970 – Failure to comply with Subpoena “Contempt of Court-arrest).
S37.12 r. (3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee – Katheline Mary Lane, Professional English Assessment for Teacher (PEAT) Administrator, Institute of Languages, New South Global Pty Ltd (Now working at Wilkins Public School), who defaults in attendance in accordance with a subpoena).
2. An order Under Part 37, S37.11 r(12) r(2) r(3) Supreme Court Rules 1970 Cost – and expenses of compliance.
Costs
Damages
Aggravated damages
Exemplary damages.”

17 The third Notice of Motion was filed on behalf of the Defendant on 28 June 2005 and sought orders:-

1. Pursuant to Part 13, Rule 5 of the Supreme Court Rules, these proceedings be dismissed.
2. The respondent pays the applicant’s costs of this motion.
3. The plaintiff pays the defendant’s costs of these proceedings.
4. Any other order this Honourable Court sees fit.

18 At the commencement of the hearing before me, the Plaintiff asserted that there were but two applications before me, viz those filed by him. However, the Records of Proceedings of 6 July, 8 August and 29 August, in the file, days upon which the Plaintiff is recorded as being present, between them demonstrate that the Defendant’s Notice of Motion was stood over until 14 November, that is the day on which I embarked upon the hearing which led to these Reasons.

19 The Plaintiff sought in any event that I deal first with his Notices of Motion. I took the view that there was certainly no point in dealing with the application to amend to add, or change the name of, a party prior to considering whether the proceedings should be dismissed – there being no suggestion that the basis of the Defendant’s application lay in the identity of the Defendant. I took the view also that my understanding of the various issues liable to arise also would be better achieved by dealing with the Defendant’s application prior to the motion for contempt.

20 In fact the hearing of the Defendant’s motion occupied virtually two days and, rather than commence to deliver my reasons at 4.15pm on the second day, I reserved indicating that when I had delivered my decision on the Defendant’s motion, I would proceed forthwith to deal with those filed by the Plaintiff.

21 The Plaintiff also submitted that by reason of the terms of Part 11 Rule 8 of the Supreme Court Rules the Defendant’s application had to fail. (For present purposes the effect of Part 12 Rule 11 of the Uniform Civil Procedure Rule is the same). So far as is relevant, Part 11 Rule 8 provided that “the Court may, on application made by the Defendant to any originating process on Notice of Motion filed within the time fixed by sub-rule (2), by order… set aside the originating process.” The time fixed by sub-rule (2) in the circumstances of this case was 15 December 2004, the return date of the Summons.

22 The Plaintiff’s submissions in this regard must be rejected. The reason is that the Defendant’s application is not merely to set aside the originating process but, as is said in the Defendant’s Notice of Motion itself, is pursuant to Part 13 Rule 5 and seeks to dismiss the proceedings themselves. Although to a layman the effect of both procedures may seem the same, in fact they are not and the rights which flow from one order rather than another are quite different.

23 I turn then to the merits of the Defendant’s application. Part 13 Rule 5 of the Supreme Court Rules provides:-

5(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:-
(a) no reasonable cause of action is disclosed;
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).

24 Part 13 rule 4 of the UCPR is in materially the same terms.

25 The gravamen of the Defendant’s contention so far as the decision of 5 November 2004 is concerned, is that the Summons does not disclose any error of law in that decision and indeed that the Appeal Panel could itself identify no error of law in the decision which it was reviewing.

26 I should acknowledge at the outset that although, of necessity, the issues which arise in this application are in some respects similar to those which would arise at a final hearing, the nature of the application is an interlocutory one. Accordingly, I proceed on the basis it should fail if the Plaintiff has a reasonably arguable case.

27 Mr Rahman is a layman and in these circumstances I have thought it appropriate to consider, quite separately from the arguments he advanced, the reasons for decision of 5 November 2004 and the panel’s conclusions expressed therein. My views on the individual paragraphs of the panel’s decision are as follows:-

3. The proceedings before the panel on 5 November 2004 were an appeal from the decision on 7 November 2003, they were not an appeal from the decision on 7 October 2003. Accordingly, this paragraph does not reveal an error of law.

4. The proposition quoted above commencing with the words “disagreement with the content of a decision” is established law - see R v Masters (1992) 26 NSWLR 450 at 470-472. Again there is no error of law.
5. This conclusion is obviously correct. As a general proposition the naming of the parties is a matter for them, particularly the party initiating proceedings but if the error or original error was that by the Tribunal it is one of those correctable under Section 87 of the ADT Act.
6. As I said under paragraph 3 above, the proceedings which resulted in the decision of 5 November 2004 was an appeal from the proceedings decided on 7 November 2003, not an appeal from the earlier decision. The reasons of 7 November 2003 do not suggest there was any further application or further basis advanced for Mr Innes’ disqualification and a simple assertion by a litigant that a “subtle inner sub-conscious revengeful mind has worked in Mr Innes’ mind” provides no evidentiary basis upon which to draw a conclusion of bias or reasonable apprehension of bias. Again no error of law, or otherwise, is disclosed.
7. No error of law, or otherwise, is disclosed.
8. I also have read the reasons given by the Tribunal. I agree with the appeal Panel’s observations in this paragraph. No error of law is disclosed.
9. No error of law is disclosed.
10. No error of law is disclosed.
11. No error of law is disclosed.
12. No error of law is disclosed.
13. Any judgment I make concerning this paragraph must recognise the limits of the information contained in it. However, no error of law is disclosed.
14-16 No error of law is disclosed.

28 It follows from these conclusions and my view that the contrary is not reasonably arguable that the Defendant’s Notice of Motion, at least so far as it applies to the Appeal Panel’s decision of 5 November 2004 should succeed.

29 The Plaintiff is out of time to appeal from the decision of 7 October 2003 unless time is extended. The fact that, subsequent to that date and after the time within which any appeal from that decision should have been brought, his substantive application to the ADT and an appeal from that decision to the appeal panel has been dealt with argues against time being extended. The nature of the issues dealt with in that decision of 7 October 2003 and which are apparent from what I have said in paragraph 7 et seq above are clearly interlocutory and thus, pursuant to Section 119(1A) of the ADT Act, leave of the Court is necessary for an appeal. Quite apart from the conclusion at which I have arrived in respect of the decision on 5 November 2004 I see nothing which approaches a reasonable ground upon which either to extend time or to grant such leave. Accordingly, the Plaintiff’s attempt to appeal from the decision of 7 October 2003 is also doomed to failure.

30 There remains his attempt to appeal from the decision of 7 November 2003. Section 119 of the ADT Act which I have set out above provides for an appeal to this Court from a decision of the Appeal Panel of the ADT. Neither it nor any other section provides for an appeal to this Court from the Tribunal otherwise. The Plaintiff’s right to appeal from the decision of 7 November 2003 was that which he exercised to appeal to the Appeal Panel and which found against him on 5 November 2004. Accordingly, the Plaintiff’s attempt to appeal in these proceedings from the decision of 7 November 2003 is also doomed to failure.

31 In these circumstances, the Defendant’s application under Part 13 Rule 5 of the Supreme Court Rules or, now, Part 13 Rule 4 of the Uniform Civil Procedure Act Rules is entitled to succeed.

32 In fact, I announced my decision to that effect on Monday 28 November last saying I would publish these reasons later. That decision made pointless the Plaintiff’s application to amend the name of the Defendant or to join other parties and it accordingly was dismissed. I proceeded then to hear the Plaintiff’s Notice of Motion alleging contempt delivering my decision on that day.

33 The orders I made on 28 November last were:-

1. The proceedings are to be dismissed as requested in the Notice of Motion filed by the Defendant on 28 June 2005.
2. The Plaintiff’s Notice of Motion filed on 7 March 2005 is dismissed.
3. The Plaintiff’s application made by Notice of Motion filed on 7 June 2005 is dismissed with costs.
4. I stay the orders made in relation to the Defendant’s Notice of Motion to dismiss or strike out the proceedings.

34 That stay was granted in order to prevent the running of time for an appeal until these Reasons were delivered. Accordingly the orders I make today are:-

1. I publish these Reasons.
2. I remove the stay granted herein on 28 November 2005.
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