Rahman v NewSouth Global Ltd (EOD)
[2003] NSWADTAP 46
•10/07/2003
Appeal Panel - Internal
CITATION: Rahman v NewSouth Global Ltd (EOD) [2003] NSWADTAP 46 PARTIES: APPELLANT
Mohammad Tabibar Rahman
RESPONDENT
NewSouth Global LtdFILE NUMBER: 039052 HEARING DATES: 28/07/2003, 1/09/2003 SUBMISSIONS CLOSED: 10/03/2003 DATE OF DECISION:
10/07/2003DECISION UNDER APPEAL:
Rahman v NewSouth Global LtdBEFORE: Hennessy N - Magistrate (Acting President); Rees N - Judicial Member; Antonios Z - Member CATCHWORDS: bias - no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 031003 DATE OF DECISION UNDER APPEAL: 05/09/2003 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977CASES CITED: Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] 75 ALJR 277
Tu v University of Sydney [2002] NSWADTAP 19REPRESENTATION: APPELLANT
In person
RESPONDENT
G Carolan, counselORDERS: 1 Appeal dismissed
Introduction
1 This is an appeal by Mr Rahman, a man of Bangladeshi national origin, from certain interlocutory decisions of the Equal Opportunity Division of the Tribunal. When the matter was heard by the Appeal Panel on 28 July 2003 it was apparent that a copy of the transcript of the preliminary Tribunal proceedings would be needed to determine the appeal. The appeal was adjourned, part heard, to obtain the transcript and the matter was re-listed for further hearing on 1 September 2003. After hearing Mr Rahman’s oral submissions the grounds of the appeal were unclear. Mr Rahman filed written submissions on 29 September 2003. These submissions set out more clearly the basis of his appeal.
Background
2 On 8 January 2003 the President of the Anti-Discrimination Board (ADB) referred to the Tribunal a complaint by Mr Rahman of race discrimination in the provision of goods and services pursuant to s 94 of the Anti-Discrimination Act 1977 (AD Act). The circumstances giving rise to the complaint were that Mr Rahman had sought approval from the Department of Education and Training (DET) to be employed as a teacher. As part of this approval process, the DET required Mr Rahman to undertake the Professional English Assessment for Teachers Test (PEAT test). That test is apparently administered under contract to DET by the Institute of Languages of the University of New South Wales. Mr Rahman sat the test on 27 October 2001 but was unsuccessful. His complaint alleges that his low score on the test was due to racial bias on the part of the examiners or because the criterion used for assessment was racially biased against him.
Preparation of matter for hearing
3 The Tribunal has taken several preliminary steps to prepare this matter for hearing. By letter to the Tribunal dated 6 March 2003 the University of New South Wales submitted that the proper respondent to the proceedings was NewSouth Global Ltd and not the Vice Chancellor of the University. According to the legal representatives for NewSouth Global Ltd, the Institute of Languages is a part of that company. While the company is wholly owned by the University of New South Wales, it is a separate legal entity and, according to their representatives, should be substituted as the respondent. Mr Rahman agreed to that change.
4 By letter dated 9 May 2003, Mr Rahman objected to Ms Carol Kirby, an employee of the UNSW, representing the respondent.
5 On 9 May 2003 the matter was listed for a preliminary hearing in relation to a summons filed and served on the respondent by Mr Rahman. At that hearing paragraph 5 of the summons was struck out and paragraph 1 of the summons was read down. In addition, the hearing date of 26 May 2003 was vacated and the matter was listed for hearing on 18 July 2003.
6 On 13 May 2003 the respondent produced the documents specified in paragraph 1 of the summons being a list of names and qualifications of those persons who acted as examiners for the test which was taken by Mr Rahman and which is the subject of his complaint. The respondent says that they have identified all the documents in their possession which are described in the summons but admits that, regrettably, Mr Rahman’s exam paper and certain tape recordings have been destroyed. On 19 May 2003 the respondent requested that the hearing date be vacated because their witnesses were unavailable. The hearing is now scheduled for 9 October 2003.
Appeal Panel’s jurisdiction
7 Under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act), “A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.” An appellable decision is defined in s 112 in the following terms:
8 Pursuant to s 112(1) the relevant enactment in this case is the AD Act. Section 118 of that Act states that:
(1) For the purposes of this Part, an "appealable decision" of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:
(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or
(b) a review of a reviewable decision.
(2) Without limiting subsection (1), the following decisions are also appealable decisions:
(a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or
(b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or
(c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal.
9 The extent of the Appeal Panels jurisdiction in relation to interlocutory matters was discussed in Tu v University of Sydney [2002] NSWADTAP 19 at [16] to [23]. That decision was set aside by the Court of Appeal, but not on this point. In finding that a decision in relation to an adjournment application was an 'appealable decisions' within the meaning of s 112 of the ADT Act, the Appeal Panel rejected a narrow, literal reading of the appeal rights granted by s 118 of the AD Act.
118. Appeals to Appeal Panel against decisions and orders of Tribunal
An order or other decision made by the Tribunal under this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.
Grounds of Appeal
10 Mr Rahman’s Notice of Appeal says that the decision against which he is appealing was made on 2 July 2003 and communicated to him on 5 July 2003. Mr Rahman gave no further grounds of appeal in the Notice, other than a request that the Appeal Panel see his letter of 30 June 2003. That letter requests an urgent adjournment of the hearing for several reasons relating to alleged non-compliance with four summons that were issued to various individuals. The letter also mentions the “illegal representation of Carol Kirby, solicitor . . . ” Although it appears that the decision made on 2 July and communicated to Mr Rahman on 5 July was a decision not to vacate the hearing date, by the time this matter came on for hearing that date had been vacated. Despite this, the Appeal Panel gave Mr Rahman the opportunity to identify an “appealable decision” made by the Tribunal and covered by his Notice of Appeal. Not being legally represented, Mr Rahman had some difficulty responding to the Appeal Panel’s invitation, however we did ascertain that his concerns were as follows:
· He does not know who the correct respondent is, but if it is NewSouth Global Ltd, then Ms Carol Kirby, as an employee of the University of New South Wales, should not be its legal representative;
· On 9 May 2003, the presiding member of the Tribunal demonstrated bias because they did not allow Mr Rahman to see a “submission” which persuaded the Tribunal that NewSouth Global Ltd was the correct respondent;
· NewSouth Global Ltd should not have destroyed his exam papers and the tape recordings because those documents are crucial to his case;
· The people to whom he has issued summonses have not produced all the documents in response to the summons he has issued;
· The Tribunal should not have struck out paragraph 5 of the summons addressed to NewSouth Global Ltd, nor read down paragraph 1 of that summons.
11 Having ascertained Mr Rahman’s concerns, the Tribunal decided that the most appropriate course of action was to adjourn the hearing so that a transcript of the hearing of 9 May 2003 could be obtained. The Tribunal directed that Mr Rahman provide any submissions he may have in relation to the transcript within 14 days of receiving it and that the respondent provide written submissions within a further 7 days. The Appeal Panel would then determine whether it could proceed to determine the appeal, or whether any further steps were required.
12 On 29 September 2003 the Appeal Panel received written submissions from Mr Rahman which clarified the grounds of the appeal. Apparently the parties attempted to negotiate a settlement after that date, but those attempts were unsuccessful. The respondent provided brief submissions on 3 October 2003. The appellant’s submissions deal with the following points:
13 We take the view that these written submissions, which are more coherent than Mr Rahman’s oral submissions, should be taken as the basis for his appeal.
1. Refusal to grant an adjournment to the proceedings.
2. Referral of matter to mediation without consent.
3. Carol Kirby’s representation of NewSouth Global Pty Ltd.
4. Failure to deal appropriately with the non-production of documents under summons.
5. Bias of judicial member Graeme Innes.
Refusal to grant an adjournment to the proceedings
14 Mr Rahman notes that as the proceedings were subsequently adjourned he does not rely on this ground except in relation to allegations of bias. Consequently this ground of appeal is not made out.
Referral of matter to mediation without consent
15 Mr Rahman states that he did not consent to the matter being referred to mediation and that because of the power imbalance between the parties, the matter should not have been referred to mediation. He also relies on his failure to consent to the referral as evidence of bias on the part of the judicial member.
16 The respondent submitted that Mr Rahman had never previously indicated that he objected to mediation either at the mediation or subsequently. Mr Rahman participated in the mediation which was unsuccessful and nothing arises which could be regarded as prejudicing Mr Rahman in any way.
17 There is no evidence before the Appeal Panel that Mr Rahman did or did not consent to the referral of the matter to mediation. That is because case conferences, where such matters are routinely discussed, are not recorded. Section 103 of the ADT Act requires a party’s consent to attendance at and participation in medication. That section states that:
18 Section 103 does not require a party’s consent to the referral of a matter for mediation. There is evidence that Mr Rahman consented to attend and participate in the mediation. The “Agreement to Mediate” prepared by the Tribunal was signed by Mr Rahman and by Ms Kirby on behalf of the respondent. The document includes the following words: “Each party agrees to take part in the mediation in good faith.” Mr Rahman participated in the mediation which was unsuccessful. There is no requirement that a party consent to the referral of a matter to mediation and Mr Rahman did consent to attend and participate. Consequently this ground of appeal is not made out. There is also a question as to whether a referral to mediation without consent is an appealable decision, but given our conclusion, there is no need to canvass that issue.
(1) Attendance at and participation in mediation sessions or neutral evaluation sessions are voluntary.
(2) A party to a mediation session or neutral evaluation session may withdraw from the session at any time.
Representation of the respondent
19 Mr Rahman is under the impression that Ms Carol Kirby, a solicitor employed by the University of New South Wales, is prevented from acting for NewSouth Global Ltd. His oral submission was made clearer in his written submissions where he said that in order for Ms Kirby to act on behalf of NewSouth Global Ltd, she would have had to obtain new instructions from that entity. Mr Rahman wrote to the UNSW requesting confirmation that Ms Kirby was entitled to represent NewSouth Global Ltd. Mr Rahman said that he received no response to this correspondence. According to the respondent, Ms Kirby advised Mr Rahman in writing on 30 April 2003 that she was acting for the respondent. The Tribunal’s “quick dismissal” of this issue is a further reason for Mr Rahman’s allegations of bias against the judicial member.
20 Section 101 of the AD Act states that the Tribunal’s leave is required before a party may be represented by a solicitor, by counsel or by an agent. Once leave is granted, a party may be represented by a solicitor, counsel or agent of their choosing. Unless there is some indication that a solicitor is appearing without instructions, the Tribunal is not obliged to make any further inquiry. Furthermore, as no decision has been made by the Tribunal, other than impliedly granting leave to a party to be represented by a solicitor, there is no appellable decision. Consequently, this ground of appeal is not made out.
Summonsed documents
21 The crux of Mr Rahman’s appeal on this point is that documents that he requested to be produced under summons were not produced. On 9 May 2003 the Tribunal conducted a preliminary hearing in relation to an application by the respondent to strike out part of the summons addressed to NewSouth Global Ltd. Ms Kirby requested that Item 5 be struck out and Item 1 be read down. The items requested were as follows:
22 Documents meeting the description in Items 2, 3 and 4 were produced. Item 5 was struck out by the Tribunal on 9 May 2003 because it was satisfied that privacy issues prevent it from allowing the names of the other persons who completed the exam at the same time as Mr Rahman to be made available. In addition, the Tribunal found that the information would not be relevant. The Tribunal also ordered that in relation to paragraph 1, that, as agreed between the parties, the respondent will make available a list of the names and qualifications of persons employed to mark the examination papers of the cohort which completed the exam at the same time as Mr Rahman. That list was made available on 13 May 2003. In his written submissions, Mr Rahman did not raise any objection to either of these decisions.
1. The name, address and qualification of the person employed to mark the examination of Mohammad Tabibar Rahman.
2. Documents, files, material related to Mohammad Tabibar Rahman.
3. Documents, proformas, policies, guidelines and other such documents used as a guide to marking of the Professional English Assessment for Teachers (PEAT) examination.
4. Contractual document with the Department of Education and Training in conducting PEAT examinations.
5. List of the cohorts that took part in the 27 October 2001 PEAT examination with Mohammad Tabibar Rahman.
23 In the course of the proceedings before the Tribunal on 9 May 2003, Mr Rahman mentioned that he had not been provided with documents in response to two other summonses. The judicial member explained that the only summons he had seen was the summons which had been discussed. Following an adjournment, Mr Rahman said “Until I get all the papers from the two other parties, I cannot proceed to a hearing.” We presume that Mr Rahman was referring to summonses to Carol Kirby and Kathie Lane, an employee of NewSouth Global Ltd. In relation to the summons to Ms Kirby, Mr Carolan, counsel for NewSouth Global Ltd, told the Tribunal on 9 May 2003 that the summons addressed to Ms Kirby calls for essentially the same documents that are sought from NewSouth Global Ltd in the summons discussed at the hearing. Mr Carolan commented that as the solicitor for the respondent, Ms Kirby’s file was privileged and any relevant material has been produced in response to the summons to NewSouth Global Ltd.
24 In relation to the summons to Kathie Lane, Mr Rahman alleged in a letter of 9 May 2003 that the following documents had not been produced: the examination paper, the listening tape and the speaking tape. Mr Carolan told the Tribunal that Ms Lane was no longer employed by NewSouth Global Ltd but said that the documents sought have been produced in response to the summons addressed to that company. The judicial member asked Mr Rahman whether he had anything to say about whether Ms Kirby or Ms Lane would have any different documents from those to be provided by the university. Mr Rahman said that if the judicial member was “happy that they have submitted all the information, then that is all right.” The judicial member stated that “the summonses for Ms Kirby and Ms Lane do not require further or extra compliance, both due to the issue of privilege as set out by Mr Carolan, and also due to the fact that the same documents will be produced on behalf of NewSouth Global.” The respondent submitted that it had produced all documents it is able to produce under the summons.
25 On the basis of the transcript and the information provided by Mr Rahman, we are unable to ascertain precisely what the documents are that he says have not been produced. If he is referring to the test papers themselves and the recordings made in the course of testing, then the respondent advised that this material was destroyed prior to Mr Rahman’s request. Consequently, the documents are not available and cannot be produced. The parties have agreed that any other relevant documents held by Ms Kirby or Ms Lane would have been produced by NewSouth Global Ltd. We can detect no error of law in the Tribunal’s reasoning or decision in relation to the summonsed material.
Bias
26 The final ground of appeal was that the judicial member was biased and should disqualify himself from hearing the matter. Mr Rahman did not indicate whether he alleged actual or perceived bias so we will deal with both forms of bias in these reasons. We assume that Mr Rahman alleges that he applied for the judicial member to disqualify himself but does not specify the context in which that application was made. It was not dealt with at the 9 May hearing. We will proceed on the assumption that an application was made, and that the judicial member refused to disqualify himself, although we were not directed to the evidence on that point.
27 The reasons for requesting disqualification include the matters outlined above. These are: referral to mediation without consent, concerns that the respondent has not instructed Ms Kirby to act on its behalf , not insisting on the production of certain documents requested under summons and the denial of an adjournment. The only other matter mentioned by Mr Rahman was that the judicial member had previously refused to amend the complaint to name NewSouth Global Ltd as the proper respondent, despite the fact that it had subsequently done so.
28 In relation to perceived bias, the High Court restated the relevant test for disqualification for bias in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group [2000] 75 ALJR 277 at 279:
29 The Appeal Panel has no evidence on which we could make a finding that Mr Rahman objected to the matter being referred to mediation. Consequently that assertion cannot support any allegation of bias. Similarly, there is no evidence that Ms Kirby was not duly instructed by NewSouth Global Ltd to represent them at the hearing. In those circumstances, Mr Rahman’s insistence that she was doing so unlawfully, and the Tribunal’s dismissal of that concern, does not disclose any bias on the part of the judicial member. An examination of the issue in relation to the alleged non-production of documents discloses that Mr Rahman agreed at the preliminary hearing that the summonses to Ms Kirby and Ms Lane did not require further or extra compliance. If Mr Rahman’s concern relates to documents which have been lawfully destroyed, then there is nothing the Tribunal can do in relation to those documents.
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
30 In relation to the denial of an adjournment, it is the Tribunal’s practice not to adjourn proceedings unless there is good reason for doing so. (See Practice Note No 4 relating to applications to Change Hearing Dates which states that “A hearing date will only be changed where it can be shown to the satisfaction of the Presiding Member that circumstances have arisen which are beyond the control of the parties or their representatives.”) As we understand it, Mr Rahman’s reason for requesting an adjournment was that he did not have all the documents he had requested. Given our findings in relation to that matter, the refusal of an adjournment does not demonstrate any bias on the part of the judicial member.
31 The final matter is that the judicial member had initially refused to amend the complaint to name NewSouth Global Ltd as the proper respondent, despite the fact that it had subsequently done so. Again we were not directed to the evidence of the initial refusal. Even if an application was initially refused, that action does not suggest bias. There are other more plausible explanations, namely that the Tribunal did not have sufficient evidence at that stage to satisfy it of the identity of the correct respondent.
32 Based on these reasons we are satisfied that a fair-minded lay observer would not reasonably apprehend that the judicial member might not bring an impartial mind to the resolution of the question he is required to decide. As actual bias is much more difficult to establish than perceived bias, it follows that we are not satisfied that the judicial member was actually biased. This ground of appeal fails.
Order
Appeal dismissed.
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