Rahman v New South Global Pty Ltd

[2004] NSWADTAP 49

Appeal Panel - Internal

CITATION:	Rahman v New South Global Pty Ltd [2004] NSWADTAP 49
PARTIES:	APPELLANT Mohammad Rahman RESPONDENT New South Global Pty Ltd
FILE NUMBER:	049031
HEARING DATES:	28/10/2004
SUBMISSIONS CLOSED:	10/28/2004
DATE OF DECISION:	11/05/2004
DECISION UNDER APPEAL:	Rahman v New South Global Ltd
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	bias - costs - no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031003
DATE OF DECISION UNDER APPEAL:	11/07/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Brandusoiu v Commissioner of Police [1999] NSWADTAP Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Rahman v NewSouth Global Ltd (EOD) [2003] NSWADTAP 46
REPRESENTATION:	APPELLANT In person RESPONDENT G Carolan, counsel
ORDERS:	1. The appellant’s application that the Appeal Panel disqualify Magistrate Hennessy for bias is dismissed; 2. The Tribunal’s decision is affirmed and the appeal is dismissed; 3. The respondent’s application for costs is not granted

Introduction

1 Mr Rahman is a Bangladeshi man who sought approval from the Department of Education and Training to be employed as a permanent teacher. As part of the approval process, the Department required Mr Rahman to undertake the Professional English Assessment for Teachers Test. That test is administered under contract to the Department by the respondent. Mr Rahman sat the test on 27 October 2001 but was unsuccessful. Mr Rahman lodged a complaint of race discrimination in the provision of services with the Anti-Discrimination Board. His complaint alleges that his low score on the test was due to racial bias on the part of the examiners or because the assessment criteria were racially biased against him. He also alleged that he had been victimised by the respondent for making a complaint.

2 The President of the Anti-Discrimination Board declined the complaints as lacking in substance. At Mr Rahman’s request, the President referred his complaints to the Tribunal. On 7 November 2003 the Tribunal gave oral reasons for dismissing Mr Rahman’s complaints and subsequently provided him with a transcript of the oral decision. Mr Rahman appealed to the Appeal Panel against that decision. He is entitled to appeal on any question of law, but he needs the Appeal Panel’s permission for the appeal to be extended to the merits of the decision (Administrative Decisions Tribunal Act 1997 (ADT Act): s 113(2)).

3 Many of the issues raised by Mr Rahman in his appeal have already been determined by a differently constituted Appeal Panel in Rahman v NewSouth Global Ltd (EOD) [2003] NSWADTAP 46. That Appeal Panel dealt with several interlocutory grounds of appeal prior to the Tribunal hearing on the substantive matter. We told Mr Rahman during the Appeal Panel hearing that he is not entitled to re-agitate those matters before this Panel. Contrary to Mr Rahman’s submission that s 81 of the ADT Act allows the Tribunal, including the Appeal Panel, to amend the proceedings, that provision does not allow this Appeal Panel to amend the proceedings before the Tribunal or before another Appeal Panel in relation to a separate appeal. His only option is to appeal to the Supreme Court, if he is still entitled to do so. (ADT Act s 119).

Application to disqualify for bias

4 Mr Rahman applied to the Appeal Panel for the presiding member, Magistrate Hennessy, to disqualify herself from hearing this appeal. Magistrate Hennessy was the presiding member in Rahman v NewSouth Global Ltd (EOD) [2003] NSWADTAP 46. According to Mr Rahman the Appeal Panel made numerous significant errors in that decision and consequently Magistrate Hennessy is biased against him. 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 omission 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 Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46 at [26] to [32]. 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 s 115 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 s 89(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 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 that 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 in Rahman v New South Global Ltd (EOD) [2003] NSWADTAP 46 at [21] to [25]. 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 s 96; Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [14] to [17].)

Representation of the respondent

11 Mr Rahman submitted that the Tribunal erred by allowing Ms Carol Kirby, a legal officer with the University of New South Wales, to represent the respondent without obtaining the Tribunal’s leave. Mr Rahman referred to s 71 of the ADT Act in support of his submission and suggested that the Appeal Panel had erred in its previous decision when it referred to s 101 of the Anti-Discrimination Act 1977. It is apparent that Mr Rahman wrongly understood that the previous Appeal Panel was referring to s 101 of the ADT Act, rather than s 101 of the Anti-Discrimination Act. Section s 101(1)(b) of the Anti-Discrimination Act requires a party to proceedings in the Equal Opportunity Division to first obtain the Tribunal’s permission before being represented by a solicitor, by counsel or by an agent. Proceedings in other divisions of the Tribunal are governed by s 71 of the ADT Act. In any case, the Appeal Panel dealt with Mr Rahman’s submission in a previous decision: Rahman v NewSouth Global Ltd (EOD) [2003] NSWADTAP 46 at [19] to [20]. Those reasons apply equally to this case.

12 Mr Rahman also submitted that Ms 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 Mr Rahman’s grounds of appeal refer to several factual matters. For example, he alleges that the Tribunal either overlooked or ignored facts which it should have relied on to draw the inference that the respondent had discriminated against him. Mr Rahman also alleged that some of the factual findings made by the Tribunal were incorrect and sought leave to introduce fresh evidence to the Appeal Panel.

15 Mr Rahman has not identified an error of law and we decline to give him leave to appeal against the merits of the Tribunal’s decision. It follows that we also decline his application to introduce fresh evidence or lodge fresh summonses. The approach consistently adopted in relation to such an application was outlined by the Appeal Panel in Brandusoiu v Commissioner of Police [1999] NSWADTAP where it 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.

16 No error of law has been established in this case and there are no other reasons which persuade us to extend the appeal to the merits of the decision.

Costs

17 The respondent applied for costs. Under s 88 of the ADT Act, the Tribunal may award costs but “only if it is satisfied that there are special circumstances warranting an award of costs.” We are not satisfied that there are any special circumstances justifying such an order. The application for costs is refused.

Orders

1. The appellant’s application that the Appeal Panel disqualify Magistrate Hennessy for bias is dismissed.

2. The Tribunal’s decision is affirmed and the appeal is dismissed.

3. The respondent’s application for costs is not granted.