Razaghi v Director General, Department of Health and NSW Medical Board

[2005] NSWADT 125

CITATION:	Razaghi v Director General, Department of Health and NSW Medical Board [2005] NSWADT 125
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Asaad Razaghi FIRST RESPONDENT Director General, Department of Health SECOND RESPONDENT NSW Medical Board
FILE NUMBER:	991070
HEARING DATES:	4/05/2005
SUBMISSIONS CLOSED:	05/04/2005
DATE OF DECISION:	06/08/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Nemeth de Bikal L - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	Determination of period and scope of complaint - Disqualification for bias
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Razaghi v Director General New South Wales Department of Health and Anor [2002] NSW ADT 4; Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337; Re JRL ex parte CJL (1986) 161 CLR 342
REPRESENTATION:	APPLICANT In person FIRST RESPONDENT C Ronalds, senior counsel SECOND RESPONDENT G Furness, counsel
ORDERS:	Orders made 4 May 2005; 1. The applicant’s application for the Tribunal to disqualify itself for bias is refused; 2. The period covered by both the race discrimination complaint and the victimisation complaint is 26 September 1998 to 26 March 1999; 3. The victimisation complaint comprises two allegations as follows:; The applicant alleges that he was subjected to an act of victimisation by the first respondent as the first respondent contravened s 50(1)(a) of the Act by reducing the amount of work which he had offered the applicant as a medical interpreter because he lodged a complaint under the Act against the first respondent. ; The applicant alleges that he has been subjected to an act of victimisation by the second respondent as members of the second respondent have caused medical schools in New South Wales not to admit the applicant as a student because he has made allegations of discrimination on the ground of race. This is an allegation that the second respondent has contravened s 50(1)(c) of the Act.

Introduction

1 Dr Razaghi has complained of race discrimination and victimisation against the Director General of the Department of Health and the New South Wales Medical Board (the respondents). The essence of his race discrimination complaint is that as an overseas trained doctor he has been discriminated against on the ground of his race in relation to the opportunities both respondents have given him to practice medicine in New South Wales. Furthermore, he says he has been victimised for complaining about race discrimination. These complaints have a long and complex history. A summary of that history up until 12 June 2001 is set out in Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [4] and [5]. The respondents filed a chronology of proceedings up until 18 June 2004.

2 On 15 March and 4 May 2005 the Tribunal held a preliminary hearing to allow Dr Razaghi to identify the evidence on which he intended to rely. During the course of those two days and following the 14 May hearing, the Tribunal determined whether or not each of the documents filed by Dr Razaghi was relevant and reliable enough to be admitted into evidence. On 14 May 2005, the Tribunal gave oral reasons in relation to three matters. Those matters were:

(i) an application by Dr Razaghi for the Tribunal to disqualify itself for bias;

(ii) a determination of the period of time covered by the complaints including a determination of whether the former President of the Anti-Discrimination Board, Mr Puplick, should be summonsed to give evidence;

(iii) a determination of the allegations that had been made as part of the victimisation complaint.

3 The text of these oral reasons is set out below. Minor editorial changes have been made which do not affect the substance of the reasoning.

Disqualification for bias

4 This is an application that we, as the three members constituting the Tribunal in these proceedings, should disqualify ourselves from further participation in the proceedings, presumably on the ground of actual and/or apprehended bias.

5 Dr Razaghi set out in his written application for disqualification a number of matters which he said constitute bias and he expanded on those grounds in oral submissions this morning. Before turning to each of those matters, we should set out briefly our understanding of the principle of disqualification on the ground of bias. The classic formulation appears in the High Court’s decision of Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337, at p 344 where Gleeson, CJ and McHugh, Gummow and Hayne JJ said:

. . . 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.

6 In addition it must be borne in mind that decision makers should not be too quick to disqualify themselves and that bias should be firmly established. The words “firmly established” were used by Mason J in the High Court decision of Re JRL ex parte CJL (1986) 161 CLR 342 at p 352. We quote a passage from that decision which has some relevance to this application.

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact or law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg v Commonwealth Conciliation and Arbitration Commission; Ex part Angliss Group (1969) 122 CLR 546, at pp 554-554 . . .

7 Obviously it is difficult for us to put ourselves in the shoes of a fair-minded lay observer when we are the ones who have been hearing this case. But doing the best we can our conclusion is that the applicant has failed to firmly establish actual or apprehended bias. Going through the points that the applicant made, the first point was in relation to a refusal on the last occasion to grant the applicant an adjournment so that he could obtain legal assistance. As Ms Furness for the second respondent has pointed out, this complaint originally came to the Tribunal in March 1999. The former member presiding, Professor Rees, gave Dr Razaghi several opportunities to obtain legal representation and firmly encouraged him to do so. This Tribunal adjourned the hearing when Dr Razaghi made an application to the Legal Aid Commission and appealed against a refusal of legal aid. Members of the registry of this Tribunal have also provided Dr Razaghi with some assistance and advice. He understands that the Tribunal cannot provide him with legal advice but he appears to take exception to the fact that applicants in this jurisdiction are forced on many occasions, either because of lack of funds or because of an inability to obtain legal representation for other reasons, to appear on their own behalf. There is nothing further that the Tribunal can do to assist Dr Razaghi to obtain legal representation.

8 The second point made by Dr Razaghi relates to the scope of the complaint. He appears to question the decision made by the Tribunal as previously constituted in Razaghi v Director General New South Wales Department of Health and Anor 2002 NSW ADT 4 at [43]. That is a decision made by the Tribunal as previously constituted, not by this Tribunal. For that reason it has no bearing on any apprehended or actual bias in relation to the Tribunal as presently constituted.

9 Dr Razaghi’s third point was that he wants to call Mr Puplick who was the previous President of the Anti-Discrimination Board in order for him to lead evidence as to whether or not he accepted his complaint out of time. First of all, as Ms Ronalds and Ms Furness pointed out, the Tribunal has not made a ruling about the issuing of summonses at this stage and without anticipating what that ruling may be, we would have to be satisfied that the matter was still an open question and that Mr Puplick could give relevant evidence on the issue of the period of the complaint.

10 Fourthly, Dr Razaghi complains that the Tribunal has not admitted evidence that he has put forward in support of his complaint. He said that we should have admitted various reports and other documents which are, in his view, relevant. We made those rulings after giving Dr Razaghi an opportunity to say why those documents were relevant. Apart from the adverse nature of some of those rulings, Dr Razaghi has not been able to point to any other basis on which he would say that the Tribunal was biased.

11 Dr Razaghi made reference to a comment that Ms Nemeth de Bikal made on the last occasion that, and I think the words Dr Razaghi used were, “This is legislation”. I understand the context of that remark to have been that Dr Razaghi is confined by the terms of the legislation in relation to his complaints. I gleaned from Dr Razaghi’s submissions today that he felt patronised by the making of that comment. Even if we accept that Dr Razaghi felt affronted by that comment, the comment itself was a mere statement of fact which could not possibly demonstrate real or apprehended bias on the part of the Tribunal.

12 Dr Razaghi says that he did not receive an official transcript of proceedings from a case conference held on 19 April 2004 and that the version as transcribed by the respondents was not accurate. We would like to highlight the Tribunal’s policy in relation to the provision of transcripts and tapes which appears on the Tribunal’s website under the heading “Provision of Copies of Sound Recordings and Transcript”.

The following is the Tribunal’s policy in relation to sound recording and transcription of proceedings.

(1) Where a hearing is to be recorded, sound recording is used.

(2) A party to the proceedings may apply for a copy of the sound recording.

(3) A written transcript will only be supplied to a party where the written transcript has already been prepared at the request of the Tribunal member or in special circumstances, for example if a request is made by a person with a hearing impairment.

13 Dr Razaghi alleges that his request for a transcript was refused on the ground that a transcript had not been prepared. That is a registry matter on which this Tribunal has not made any ruling. It is an administrative matter which cannot reflect adversely on the Tribunal itself.

14 Other references by Dr Razaghi to a document from a Mr Pepper which was tendered in the proceedings in relation to the section 111 application are not relevant to any question of perceived or actual bias of this Tribunal.

15 Dr Razaghi’s next point related to the failure or unwillingness of the respondents to engage in negotiations with the applicant. Again that is not a matter which could possibly reflect adversely on the impartiality of this Tribunal.

16 Finally, we note that Dr Razaghi has lost trust in the members of this Tribunal to impartially determine his application. While we see that as extremely unfortunate, that is not the test that is the basis for any disqualification for actual or perceived bias. As we have said, the test is what a fair minded lay observer might reasonably apprehend in relation to whether or not the panel would bring an impartial mind to the resolution of the question. Doing the best we can, we have determined that the application has not been made out.

Period covered by the complaints and summons re Mr Puplick

17 We are going to start by making a few decisions that will hopefully clarify some issues that have been hanging over the proceedings on the last few occasions. Those decisions relate to the periods of both the discrimination and the victimisation complaint and the question of whether under s 88(4) of the Anti-Discrimination Act 1977, the President of the Board, Mr Puplick, made a decision to accept either of those complaints out of time.

18 We start by foreshadowing that our decision is that both the discrimination complaint and the victimisation complaint are confined to the six month period prior to the lodging of the complaint on 26 March 1999, that is from 26 September 1998 to 26 March 1999. We appreciate that that involves a rejection of Dr Razaghi’s application to call Mr Puplick who was the President of the Anti-Discrimination Board at the time the complaints were lodged.

19 This decision is based firstly on paragraph 43 of the Tribunal’s decision in Razaghi v Director General, New South Wales Department of Health & Anor, 2002 NSWADT 4. Just for completeness I will read that part of the paragraph onto the transcript.

We do not know whether the applicant has any evidence to present in support of the allegations which we have identified as being possibly triable, or whether the incidents fall within the period of time covered by his initial complaint, or complaints, to the President of the ADB . If any of the alleged incidents of discrimination on the ground of race occurred outside of the period 26 September 1998 to 26 March 1999, the Tribunal would have no jurisdiction to inquire into those matters, regardless of the strength of the evidence which the applicant is able to present in support of his allegations. As we are not in a position to make a determination about the date of the initial complaint, or complaints, of victimisation it is not possible, at this stage, to delineate the relevant time period for any victimisation allegations.

20 We had been assuming, and it appears that assumption may not have been entirely correct, that this was a finding of the Tribunal that the discrimination complaint was confined to the six month period. We are grateful to Dr Razaghi for pointing us to the unofficial transcript of a case conference which took place after the Tribunal’s s 111 decision was handed down. At p 66 of the document that Dr Razaghi has provided to us, about two thirds of the way down that page, Professor Rees makes the following comment.

So Dr Razaghi what we are saying at this stage is you can now start putting on your evidence and that is going to be statements by you and anybody else who you think is in a position to provide evidence in support of your claim. When we have got that documentation we will set down a day for a hearing and as part of that day we will determine whether you are able to produce any evidence outside the six month period because there is a finding against you at the moment that you are limited to the six month period but that if you can produce evidence which proves that the President of the Anti-Discrimination Board accepted earlier material so be it, you will have the chance to do that.

21 Given that exchange and Dr Razaghi’s insistence that he wanted to call Mr Puplick in order to give evidence that he had accepted the complaint out of time, we have gone through the relevant documentation, in particular the President’s report. We note at tab 4 of that report in a letter from Mr Puplick to Dr Razaghi dated 16 April 1999, the President says at p 2:

Section 88(3) of the Anti-Discrimination Act states that complaints must be lodged with the Board within six months from when an act of alleged discrimination occurred. If a complaint is lodged outside this six month statutory timeframe then I have the power under s 88(4) of the Act to accept the late complaint but only if the complainant shows good cause about why their complaint was lodged late. I need clear information from you about dates of alleged discrimination so that I can determine whether any part of your complaint is out of time. It is not enough to provide large volumes of information about the issue in general without providing sufficient detail about the specific allegations you want the Board to investigate. The more clearly you present your specific complaint to the Board the easier it is for us then to present it clearly to the appropriate respondent and to request their reply.

22 Dr Razaghi has not pointed to any other evidence, other than oral evidence that he says Mr Puplick would be able to give if summonsed, that would support his submission that the President on good cause being shown, accepted the complaints out of time. Given that acceptance of a complaint out of time requires the positive exercise of a statutory discretion, we are not prepared to look behind the documentation which the President has referred to the Tribunal. The Tribunal derives its jurisdiction from the referral of the complaints by the President. There is no indication in that referral that the complaints have been accepted out of time.

23 In short there is a statutory discretion under s 88(4) which enables the President to make a decision to accept a complaint out of time on good cause being shown. If such a discretion had been exercised, it would have to have been recorded. Dr Razaghi was not able to produce any record of such a decision having been made and there is no such evidence of it in the President’s Report. We do not consider that it is appropriate for us to look behind the terms of that referral to decide whether there was anything different in the mind of the President, especially given the terms of the statutory discretion set out in s 88(4).

Scope of the victimisation complaint

24 The next matter to which we turn is the scope of the victimisation complaint. As parties will recall, prior to the break there was some discussion about the scope of that complaint. First of all we should say that the Tribunal made some observations about the scope of the complaint in its decision dated 1 February 2002. (Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4.) In effect the Tribunal formulated the complaint on Dr Razaghi’s behalf and pointed to two matters which could possibly amount to victimisation. They were reflected in paras 9 and 10 of a Points of Claim document that the respondents prepared. We note that the applicant did not accept the respondents’ gesture in reducing his points to writing in that way but nevertheless they do appear to reflect not only the complaint that the applicant made to the Board, but the complaint as referred by the Board to the Tribunal. The question then is whether or not Dr Razaghi should be limited to those matters in relation to his victimisation complaint despite the fact that he has put to us today that further matters should be included as part of that complaint.

25 We have taken the view that the complaint of victimisation, on any fair reading of it, should be restricted to the two matters set out in those paragraphs 9 and 10 of the points of claim lodged by the respondents. Those points are reflected at [42] of Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4.

The applicant alleges that he was subjected to an act of victimisation by the first respondent as the first respondent contravened s 50(1)(a) of the Act by reducing the amount of work which he had offered the applicant as a medical interpreter because he lodged a complaint under the Act against the first respondent.

The applicant alleges that he has been subjected to an act of victimisation by the second respondent as members of the second respondent have caused medical schools in New South Wales not to admit the applicant as a student because he has made allegations of discrimination on the ground of race. This is an allegation that the second respondent has contravened s 50(1)(c) of the Act.

26 We also want to emphasise that these allegations were formulated after the applicant was given several opportunities to formulate his own complaint but was unable to do so with the kind of particularity that is necessary so that the respondents can know the nature of the allegations against them. The Tribunal formulated Dr Razaghi’s complaint for him on the basis of the material that he provided to the Anti-Discrimination Board and the Tribunal. We believe that we have reached the stage in these proceedings where, in order to resolve the issues that have been raised in that complaint, firm decisions need to be made about the scope of the complaint so that the matter can move forward. Any evidence in support of those complaints can be presented to the Tribunal for adjudication.

Further matters

27 One issue which we did not include in our oral reasons, but which needs to be addressed, is the fact that, although the Tribunal found that the date on which Dr Razaghi lodged the complaint of race discrimination was 26 March 1999, the Tribunal was unable to identify the date on which the victimisation complaint was made. In Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [41], the Tribunal said:

In both sets of Points of Claim the applicant has made allegations of victimisation. As we have noted, neither Ms Ronalds nor Ms Furness made submissions to us concerning the identity of the initial complaints of victimisation to the President of the ADB. We cannot identify anything in the initial complaint of discrimination on the ground of race (Exhibit 1) which could be characterised as a complaint of victimisation against either respondent. We invite further submissions from the parties about this matter.

28 The Complaint Summary, which is part of the President’s Report, summarises the documents that Dr Razaghi sent to the Board. Dr Razaghi sent material to the Board on 9 March 1999, 19 March 1999, 26 March 1999, 14 April 1999, 19 April 1999 and 4 May 1999. In a letter to the respondents dated 13 May 1999, the Board stated that allegations of race discrimination and victimisation were contained in the attachments to that letter which appear to be Dr Razaghi’s letter of 26 March 1999, Dr Razaghi’s eleven page letter to the President (undated but presumably received on 4 May 1999) and a facsimile received on 4 May 1999. Consequently, from the President’s point of view, a complaint of victimisation was received some time between 26 March 1999 and 4 May 1999. Although we are not able to identify the date on which a victimisation complaint was received, we have decided to accept that such a complaint was made. As it is not possible to determine the date on which such a complaint was made, we have assumed that it was made on the same date as the race discrimination complaint, namely 26 March 1999. This ruling allows Dr Razaghi to go back as far as 26 September 1998 in order to make out any complaint of victimistion.

Further directions and hearing

29 The Tribunal has made the following directions:

1. By 3 June 2005, the applicant is to file and serve a document which specifies:

(i) the precise conduct about which a witness who he wishes to summons can testify which is relevant to the complaint and which relates to the period of the complaint;

(ii) any documentary evidence in addition to that outlined above, which has been admitted and which the applicant alleges supports any of the complaints.

2. By 24 June 2005, the respondents to file and serve any material in reply on which they intend to rely at the hearing.

30 The matter has been set down for hearing on 26 July 2005 to consider whether, in the light of the documentary evidence identified by the applicant and any further evidence which could be given by a witness, any or all of the complaints should be dismissed as lacking in substance under s 102 of the Anti-Discrimination Act 1977.