Salt v Director-General, Department of Education and Training (EOD)

[2007] NSWADTAP 60

Appeal Panel - Internal

CITATION:	Salt & anor v Director-General, Department of Education and Training (EOD) [2007] NSWADTAP 60
PARTIES:	APPELLANTS Alison Salt and Ezekial Shaw RESPONDENT Director-General, Department of Education and Training
FILE NUMBER:	069077
HEARING DATES:	21 May 2007
SUBMISSIONS CLOSED:	21 May 2007
DATE OF DECISION:	10 October 2007
BEFORE:	Britton A - Deputy President; Goode P - Judicial Member; Monaghan-Nagle L - Non Judicial Member
CATCHWORDS:	adequacy of reasons - fail to consider fully the evidence and legal argument - delay in delivering reasons - costs
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	031160 and 031159
DATE OF DECISION UNDER APPEAL:	11/16/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Battenberg v The Union Club (No 3) [2005] NSWADT 126 Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner for Fair Trading, Office of Fair Trading v Cromwell's Auctioneers & Appraisals Pty Limited (GD) [2005] NSWADTAP 25 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Haines v Leves (1987) 8 NSWLR 442 Howell v Macquarie University (GD) [2007] NSWADTAP 10 Mastronardi v State Of New South Wales [2007] NSWCA 54 Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Murtagh & Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39 Reddy v International Cargo Express [2005] NSWADT 3 Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 Sea Containers Limited v ICT Pty Limited [2006] NSWCA 327 Sea Containers Ltd v ICT Pty Ltd [2006] NSWSC 134 Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41 University of New South Wales v McGuirk (GD) [2006] NSWADTAP 38
REPRESENTATION:	APPELLANT J Berwick, barrister RESPONDENT P Griffin, barrister
ORDERS:	1. Appeal is dismissed; 2. Respondent's application for costs is refused

1 Twelve months after commencing at Bourke Public School the appointments of Aboriginal teachers, Alison Salt and her partner, Ezekial Shaw were annulled. Subsequently Ms Salt and Mr Shaw lodged complaints against their former employer, with the President of the Anti-Discrimination Board alleging unlawful discrimination on the ground of race and victimisation. Ms Salt also lodged a complaint of sexual harassment. In a decision handed down on 16 November 2006 (Salt & Anor v NSW Department of Education and Training [2006] NSWADT 326) all complaints were dismissed.

2 Ms Salt and Mr Shaw now appeal that decision. They assert that the Tribunal: made findings against the weight of evidence; failed to provide adequate reasons for its findings and denied them procedural fairness by admitting various documents tendered by the respondent. In addition it is asserted that the decision has been vitiated by excessive delay.

Name of respondent

3 In the published Reasons for Decision the respondent was identified as the ‘NSW Department of Education and Training’. The President of the Anti-Discrimination Board, when referring the complaints to the Tribunal, named the respondent as the ‘Department of Education and Training’ as did the parties in the documents filed in the course of the proceedings. Section 4B(1)(c) of the Anti-Discrimination Act 1977 (‘AD Act’) provides that a reference in the Act to an employer in relation to employment in the Teaching Service, is a reference to the ‘Director-General of the Department of Education and Training’. In our view that is the proper name of the respondent and the name we will use in these Reasons.

Grounds of Appeal

4 In their original Notice of Appeal filed on 12 December 2006 the appellants advanced nine grounds of appeal, consisting of both purported questions of law and grounds relating to the merits of the Decision.

5 The Amended Notice of Appeal filed on 24 April 2007 abandoned all grounds relating to the merit appeal and five of the nine grounds relating to the question of law appeal. The Amended Notice advanced four Grounds of Appeal:

i) The Tribunal failed to give any weight, or insufficient weight, to its findings that there was a culture of hostility towards the Applicants based on their assertion of their Aboriginality. Further or in the alternative;

ii) The Tribunal gave insufficient reasons for its findings. Further or in the alternative;

iii) Delay has vitiated the judgment such that it is not a proper exercise of the jurisdiction of the Tribunal. Further or in the alternative;

iv) It was procedurally unfair for the evidence presented in the witness statements relied on by the Respondent to go forward in the form in which it was presented.

6 To put the arguments of both parties in context it is necessary to briefly set out the factual background to the appellants’ complaints. The following summary is taken from the Tribunal’s Reasons for Decision and the evidence before it, primarily that in exhibit form. In the interests of brevity we have confined our summary to events that occurred in the later part of 1999.

7 The appellants commenced employment at Bourke Public School on a probationary basis in February 1999. Ms Salt was appointed to the position of Aboriginal Education Resource teacher (‘AERT’). Mr Shaw was employed as a kindergarten teacher.

8 Each appellant claims that throughout the course of the school year, school principal, Paul Loxley, in his dealings with them over a myriad of issues, treated them unfairly. They cited as examples his alleged failure to: provide them with reasonable support and supervision; properly and fairly deal with complaints made by and against them; take action to address the climate of ‘racial tension’ at the school.

9 On 1 September 1999, Acting Assistant Principal, Brooke Unsworth, announced that the appellants’ son could not attend a school excursion on the ground that the school had not received the fee for the excursion. The appellants challenged that decision. An argument ensued. Ms Unsworth claimed she was verbally abused. That is denied.

10 A week later Mr Shaw made a formal complaint to Mr Loxley, about Ms Unsworth’s handling of that incident. Mr Shaw asserted that the cost of the excursion should have been met from funds available to the school’s Aboriginal Student Support and Parent Awareness (‘ASSPA’) Committee and Ms Unsworth had therefore acted inappropriately.

11 On 6 September there was a heated argument between Ms Salt and fellow teacher, Michael Collins. Ms Salt alleged that Mr Collins had called her a ‘black fella’. That is denied. Ms Salt lodged a complaint about Mr Collins under the school’s ‘Anti–Racism policy’. That complaint was dismissed.

12 On 14 September 1999 Mr Loxley wrote to each appellant and requested a meeting to discuss their conduct and ‘its impact on [their] probationary teacher status’.

13 Two days later, Mr Shaw lodged a formal complaint with Robin McKerihan, the Department’s District Superintendent charged with responsibility for Bourke Public School, about Mr Loxley’s handling of his complaint against Ms Unsworth. He asserted that Mr Loxley had breached the Department’s Anti-Racism policy by discussing his complaint with members of the ASSPA committee. He contended that Mr Loxley’s actions were ‘a professional disgrace and culturally damaging to me as an Aboriginal teacher and Aboriginal parent’.

14 On 12 November 1999 Mr Loxley wrote to Ms McKerihan and recorded his ‘growing frustration in attempting to resolve issues’ with the appellants. He asserted that both appellants had repeatedly ignored his request for a meeting, claiming that they were unable to meet with him because their complaints against him of alleged race discrimination, were on foot.

15 On 26 November 1999 the appellants announced to a meeting of school staff that they intended to contact the Nine Television Network’s, ‘A Current Affair’ program, to expose their mistreatment by the school.

16 Shortly before that meeting the appellants had been handed a copy of a letter addressed to Mr Loxley dated 21 September 1999 signed by 18 members of the staff (referred to by the Tribunal below as ‘the petition’). The petitioners wrote that they felt ‘intimidated by the actions of Mr Shaw and Ms Salt’. They asserted that the Department’s code of conduct had been breached citing the following:

i) Members should be loyal to colleagues at all times and refrain from adversely criticising them in the hearing of the public or of students.

ii) No members should, in the hearing of other members or students, criticise the work of other members.

iii) Members shall not engage in harassment, victimisation or intimidation of other members or students.

iv) Members shall not engage in any form of racist behaviour, comments or dissemination of racist material.

17 Neither appellant returned to the school after that meeting.

18 In a briefing note dated 6 January 2000 Ms McKerihan recommended that Mr Shaw’s appointment be annulled. In support of that recommendation she asserted that Mr Shaw had not:

i) Complied with directions to return to work after 26 November 1999 and various other directions made by herself and Mr Loxley;

ii) Shown remorse for his actions on 26 November 1999;

iii) Met the ‘reasonable organisational requirements’ of the Department, citing as examples, taking unauthorised leave and failing to repay an advance provided by the school;

iv) Demonstrated an ability to work harmoniously as a member of the school staff.

19 A further reason advanced by Ms McKerihan in support of that recommendation was ‘unresolved concerns regarding Mr Shaw’s efficiency as a teacher’ and his alleged inability to ‘develop a working relationship with his colleagues’.

20 The recommendation that Ms Salt’s appointment be annulled was made by Ms McKerihan for broadly the same reasons given in support of her recommendation concerning Mr Shaw. In addition, she argued that despite being given ‘extensive and ongoing’ support, Ms Salt was ‘not prepared to make the corresponding effort to justify her probation being extended and allowing concerns regarding her efficiency as a teacher to be resolved’.

21 By letter dated 20 March 2000, Ms Salt was notified that her appointment as a probationary teacher had been annulled and her employment with the NSW Education Teaching Service had ceased. That decision was stated to have been based on ‘the evaluation of your performance and conduct as a probationary teacher at Bourke Primary School’. Mr Shaw received a letter in identical terms.

22 On 28 August 2000 the appellants were notified that they had been placed on a list of people not to be employed in a NSW Government School or TAFE NSW without the approval of the Director of Staffing Services.

23 Tendered in the proceedings below, were reports prepared by Mr Loxley about the appellants’ performance as a teacher. In his report on Ms Salt dated 25 November 1999, Mr Loxley noted that on commencement she ‘quickly established a rapport with the students in her care’ and that throughout the school year had accepted responsibility for a diverse range of school activities. He thought that her general programming skills were ‘thoughtful and creative’ but felt that she had not completed various programming tasks within the ‘requisite time frame’. He wrote that ‘on occasion’ Ms Salt demonstrated that she could work as a part of a team but that ‘at times’ her professional relationships with other staff members was a ‘source of concern’. He recommended that she concentrate on organisational and time management skills. He recommended that she be determined as ‘not satisfying requirements for the position held, and the award of a Teacher’s certificate’.

24 Mr Loxley also recommended that Mr Shaw not be awarded a teacher’s certificate. In a report dated 25 November 1999 he noted that Mr Shaw ‘displays an energetic enthusiasm when teaching the students in his classes and strives to make the classroom ‘a place of enjoyment’. He recorded that Mr Shaw had placed a ‘great amount of effort’ into organising school sporting activities. He noted with approval Mr Shaw’s record of participation in many extra curricula activities including involving students in activities for NAIDOC [National Aborigines and Islanders Day Observance Committee] week. Mr Loxley commended Mr Shaw for his dedication in ‘developing a rapport with the parents of his students’. However he went on to express concerns with Mr Shaw’s ability to program ‘explicitly and systematically for his literacy and numeracy groups despite being assisted in this task’. He noted that while at times he had demonstrated an ability to work as a member of a team, at others, his professional relationship with staff had been the ‘subject of concern’. He also claimed that Mr Shaw had not complied with a number of lawful directions.

Complaint to the Board

25 On 29 August 2000 Mr Shaw complained to the President of the Anti-Discrimination Board alleging unlawful discrimination on the ground of race and victimisation. A month later Ms Salt also lodged a complaint with the President, alleging victimisation and discrimination on the grounds of race and sex. Three years after these complaints were lodged with the President they were referred to the Tribunal.

26 The Tribunal below dealt with the complaints in the same proceedings, apparently having concluded that they involved ‘substantially the same circumstances or subject-matter’: s 100 of the AD Act.

Relevant provisions of the AD Act

27 The appellants’ cases were cast as allegations of so-called ‘direct discrimination’. The definition of direct discrimination is found in s 7(1)(a) of the AD Act which provides as follows:

1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race.

28 Section 8(2) renders it unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

29 The statutory definition of direct discrimination requires two elements to be established: ‘differential treatment’ and ‘causation’ (see Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5). In respect of the latter, race need not be the dominant or substantial reason for the respondent’s offending treatment, it is enough that it was one of the reasons (s 4A of the AD Act).

30 In its Reasons for Decision, the Tribunal identified ‘the question to be answered’ under the heading, ‘The claims of racial discrimination by Mr Salt and Ms Shaw’ (at [39]) in the following terms:

Whether Mr Shaw and Ms Salt were treated less favourably than a person who was not an Aboriginal person in the same or similar circumstances.

31 The Tribunal was of course also required to ask in respect of each appellant whether one of the reasons for any differential treatment was their race. While the Tribunal did not identify this element as an issue to be determined in this part of its Reasons, this would appear to have been an oversight, as it went on to consider the issue. (See for example, Reasons for Decision, at [56] and [62]).

Alleged Error 1: Failure to give any/sufficient weight to findings

32 The appellants assert that the Tribunal failed to give weight or sufficient weight to a number of critical findings it had made. They contend that the Tribunal’s ultimate conclusion, that their respective complaints of discrimination on the ground of race were not substantiated, was irreconcilable with other findings, namely:

i) The ‘culture of hostility’ finding

There was clear evidence of a climate and culture within the school that was antagonistic to both Mr Shaw and Ms Salt and that staff members saw them as ‘trouble-makers’ and were uncomfortable with the way in which they expressed their Aboriginality. The response to their assertion of their Aboriginality by the school was to put the onus on them to tone their behaviour down rather than to also address the issues as to why the staff felt such discomfort about this assertion. The staff friction that developed over time was often seen as the fault of Ms Salt and Mr Shaw rather than of other staff members. (Reasons for Decision at [49]).

That there was a ‘failure to adequately deal’ with the ‘culture of hostility’ and distrust that developed between Mr Shaw and Ms Salt and the rest of the staff at Bourke Public School. (Reasons for Decision at [50]).

That this failure to manage the ‘culture of hostility’ was evidenced by the petition circulated by staff. (Reasons for Decision at [50]).

ii) The performance findings

It was not the teaching performance of either Mr Shaw or Ms Salt that was the motivating factor in issuing the letters to warn that their probationary period was at risk. Both presented enough evidence to show that they were performing their teaching duties within the classroom to an extent that did not justify their probation being at risk as a result of it. … (Reasons for Decision at [51]).

There is not enough evidence to support the respondent’s assertion that the notice given to Mr Shaw and Ms Salt, advising that their probation was at risk was due solely to their inadequacies as teachers. Although some concerns had been raised, these could have been addressed with further training and closer supervision and were, of themselves, not enough to justify their termination. (Reasons for Decision at [53]).

In relation to Ms Salt, the Tribunal finds that the evidence that her probation was at risk because of her teaching performance was not consistent with the reports that she received from both her supervisor, Mr Sherrand and Mr Loxley. (Reasons for Decision at [57]).

Ms Salt’s dismissal from the school was not solely due to her teaching performance. (Reasons for Decision at [58]).

33 The respondent argues that this ground does not raise a question of law as it constitutes an assertion that a conclusion was reached against the weight of the evidence. The respondent contends that this ground is in truth an appeal on the merits, which requires leave and has not been sought.

34 Scope of the discrimination complaints Before addressing these arguments, it is useful to make some brief comments on the scope of the complaints. The Tribunal proceeded on the basis that the compass of the appellants’ complaints of unlawful race discrimination did not extend beyond the decision to annul their respective appointments (or ‘terminate their employment’– the Tribunal uses these terms interchangeably). That approach to the complaints has not been challenged on appeal.

35 Given this characterisation of the scope of the complaints, the Tribunal was required to determine, in respect of each appellant, whether the respondent in annulling their appointment/terminating their employment:

i) treated them less favourably than it treated or would treat a non-Aboriginal teacher in circumstances that are not materially different; and

ii) was one of the reasons for any less favourable treatment because they were Aboriginal.

36 Observations about the Tribunal’s findings The Tribunal at first instance, unfortunately, did not make clear what it meant by ‘a climate and culture of antagonism’, referred to at par [32] of these reasons.

37 The use of language without anchorage in concrete reference can lend itself to multiple interpretations. The appellants, for example, interpret the ‘climate of hostility’ finding as adverse to the respondent and inconsistent with a finding that racial discrimination had not been proven. The respondent, on the other hand, argues that the second proposition does not follow from the first but does not cavil with the Tribunal’s finding at first instance. The flavour of the respondent’s submission, read as a whole, however, is that if there was antagonism between the appellants and other staff at the school, it was explicable on bases other than race.

38 The finding that other staff were ‘uncomfortable with the way in which [the appellants] expressed their Aboriginality’ also has an undesirable lack of clarity about it. The appellants interpret this finding to indicate that the Tribunal found that the non-indigenous staff were unreasonably intolerant of the ways they expressed their cultural identity.

39 The petition, which became a serious source of contention between the parties, and other evidence heard by the Tribunal, suggested, according to the respondent, that the reason that non-indigenous staff were uncomfortable with the ‘assertions of Aboriginality’ by the appellants was not that they asserted the fact that they were Aboriginal – that was well understood by everybody – but that they were demanding and belligerent in the way they asserted themselves. If that was the case, as some non-indigenous staff apparently claimed, this went beyond a mere ‘assertion of Aboriginality’. The Tribunal’s finding that the staff were ‘uncomfortable’ about the assertions of Aboriginality therefore could be read, argued the respondent, as a finding favourable to the non-indigenous staff. It is regrettable that the Tribunal did not state with precision what its finding meant.

40 While regrettable that the Tribunal failed to clarify what it meant about these and other matters we have mentioned, for the reasons as follow, we do think, this of itself represented an error of law.

41 A question of law? As the respondent submits, an assertion that a finding of fact or ultimate conclusion is against the weight of evidence does not amount to a question of law. In Haines v Leves (1987) 8 NSWLR 442, Kirby P endorsed the cautious approach advocated in Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 to reviewing findings of fact:

[I]n appeals such as the present, the legislation does not allow the Court to correct errors of fact. It does not permit the Court to review even a finding of fact which is said to be perverse or contrary to the overwhelming weight of evidence or even against the evidence and the weight of the evidence. Nor may the Court review findings on the facts which are alleged to ignore the probative force of the evidence which is all one way, even if no reasonable person could have reached the decision made and even if the reasoning by which the Court arrived at its finding was demonstrably unsound. In all such circumstances, the Court concluded, no error of law would be shown to attract the jurisdiction of this Court. The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law.

42 While correct that a finding said to be against the weight of evidence does not disclose an error of law, there are nonetheless a number of qualifications to this rule. These include where evidence critical to an issue in the case has been ignored (Mifsud v Campbell (1991) 21 NSWLR 725; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513); or where the decision made was ‘manifestly unreasonable’ (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 41). From the appellants’ submissions it would seem that these are the real questions raised by this ground of appeal, notwithstanding that they are expressed to be an attack on a finding asserted to be against the weight of evidence.

43 Critical issue ignored? The appellants contend that having made the findings to which we have referred above (at [32]), the Tribunal failed to address whether there was a nexus between them and the decision to annul their appointments.

44 This proposition, it is argued, is bolstered by the Tribunal’s finding that the decision to annul Mr Shaw’s appointment was ‘not based on his teaching performance (at [56])’; and that concerning Ms Salt was ‘not solely due to her performance [as a teacher] (at [56])’.

45 We do not agree. Dealing with the last proposition first, it is clear that action was taken by the respondent against both Mr Shaw and Ms Salt for a number of reasons. It is important here to emphasise that both appellants were probationary teachers. That is to say, their overall performance, not just one part of it was under scrutiny. Their suitability for the teaching profession in NSW was being assessed. The Tribunal at first instance found that there was ‘a well-documented history of Mr Shaw’s absence[s] from work (at [54])’ and that the Principal’s concerns were his absences, his failures to comply with directions from him, his walking out of the school without leave and his refusal to co-operate in ‘settling the matters he had raised’ (at [55]).

46 The Tribunal clearly considered whether or not there was a causal connexion between the decision to annul Mr Shaw’s appointment and racial factors and came to a conclusion that there were more plausible alternative explanations for his treatment. It concluded that ‘while it was clear that Mr Shaw’s dismissal was not based on his teaching performance, there is evidence that it can be explained by other factors, none of which relate to his Aboriginality’ (at [56]).

47 In relation to Ms Salt, the Tribunal found that there were some problems with her performance as the Aboriginal Education Resource Teacher which the Tribunal thought to be ‘minor’ in the scheme of things (at [51)). The Tribunal explained her poor performance on the basis of lack of training and supervision and the requirement to take on the additional duties in the AERT role. On the evidence it appears that Mr Loxley was over-confident in the ability of a new and inexperienced teacher to perform a demanding role. There was a conflict in the evidence about whether Ms Salt had received adequate attention from those supervising her. The Tribunal concluded that she had been inadvertently set up to fail. Nevertheless, her under-performance allied with the cogent evidence that she also left the school without leave, was absent from her duties regularly and that she failed to co-operate in the endeavours to resolve the dispute(s) in the school all reflected badly on her ability to function as a reasonably efficient teacher in a school team. As in Mr Shaw’s case Ms Salt had a difficult forensic task. The Tribunal at first instance was careful to consider all the relevant factors, including race, and came to the same conclusion it had in relation to Mr Shaw, namely that, given the cogency of the alternative explanation provided for the treatment she had received, Ms Salt had not discharged her burden of proof.

48 Although we have suggested that the reasons given by the Tribunal at first instance could have been expanded and provided considerably more detailed analysis of the evidence, it is our view that it carefully weighed the evidence favouring the appellants. Once the evidence of unauthorised absences, refusal to comply with the Principal’s directions, and failure to co-operate with the investigations of their complaints and the efforts to resolve the various disputes in the school was admitted, the forensic task of proving that each appellant had been subjected to less favourable treatment and if so, that race played a role, was a difficult one for the appellants.

49 We do not agree that the Reasons for Decision disclose that the Tribunal failed to have regard to critical evidence (or findings) that the appellants contend favour their case.

50 Manifestly unreasonable? There is no dispute in this case that the material placed before the Tribunal was relevant. The appeal raises a question whether adequate or appropriate weight was given to it. The appellants, to be successful on the point, imply that the approach taken by the Tribunal was manifestly unreasonable.

51 In Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at sub-para (d) of [15] of his judgment Mason J dealt generally with the effect of irrelevant considerations on the lawfulness of a decision. As to the situation where relevant considerations had been taken into account, but were given inappropriate weight he said (authorities cited omitted):

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.

52 His Honour referred to the landmark decision of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, in which it was held that such an error would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it, and the relevant Australian and English authorities adopting it.

53 Mason J at p 41 of his judgment, seeking to locate the point at which an attack on an administrative decision for manifest unreasonableness might be successful, compared the functions of judicial review and appellate review of judicial discretion as follows:

[G]uidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice [citations omitted]. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

54 In this case, the Tribunal at first instance had the opportunity to see the witnesses for both parties examined and cross-examined. While it did not deal at any length with questions of credibility in its reasons, it is apparent from them that, despite some evident sympathy for both appellants, the Tribunal was not satisfied that they had established on the balance of probabilities that they had been subjected to less favourable treatment or that one of the reasons for the annulment of their respective appointments was race. Indeed, the reasoning process was that there were at least two hypotheses available and the hypothesis favouring the respondent was the more cogent, namely that it was a combination of factors related to the appellants’ conduct rather than race that led to their probationary employment being terminated.

55 In our view, the analysis of the Tribunal at first instance manifests no unreasonableness.

56 Summary We conclude that no error of law has been identified in respect of this ground of appeal.

Alleged Error 2: Failure to give sufficient reasons for decision

57 Despite the absence of any express statutory requirement to provide ‘adequate’ reasons (except where a party requests written reason for an oral decision under s 89(3) of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’)), successive Appeal Panels (differently constituted) have accepted that the Tribunal has a duty to give adequate reasons. (See for example Howell v Macquarie University (GD) [2007] NSWADTAP 10 at [56]; University of New South Wales v McGuirk (GD) [2006] NSWADTAP 38 at [28]; Retain Beacon Hill High School Committee Inc v Department of Commerce (GD) [2006] NSWADTAP 58 at [25]; Commissioner for Fair Trading, Office of Fair Trading v Cromwell's Auctioneers & Appraisals Pty Limited (GD) [2005] NSWADTAP 25 at [23]).

58 The leading authority in New South Wales explaining what is meant by the duty to give adequate reasons is Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. McHugh JA stated at p 280 (citations omitted):

If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons… But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given …’.

59 In the same judgement Mahoney JA at pp. 272-273, emphasised that a judge is not required to make a finding in respect of every fact leading to the final conclusion of fact, nor reason from one fact to the next along the chain of reasoning to that conclusion. Nevertheless, a judge must distinguish between the essentials and the peripherals. This is so particularly where there is a right of appeal to be exercised.

60 The appellants argue that the Tribunal gave insufficient reasons for its decision to dismiss their complaints of discrimination on the grounds of race. They contend that ‘in the face of clear findings as to racial issues, in this case the assertion of their Aboriginality, being the basis of hostility towards Ms Salt and Mr Shaw’ the ultimate conclusions are insufficiently clearly reasoned. They argue the reasons given allow them ‘no clear perception of what led the Tribunal to reject the proposition that the lack of toleration of the [appellants’] assertion of their Aboriginality was a material cause’ of Mr Loxley’s decisions adverse to their interests. They also argue that the Tribunal failed to explain why Mr Loxley was immune from the ‘culture of hostility’ that the Tribunal found to be alive at the school.

61 While we have already stated above that the reasons of the Tribunal could have been more detailed and specific, the reasoning process is largely transparent.

62 It is important to emphasise that the appellants bore the onus of proof. The appellants are, in our view, wrong to characterise the way the Tribunal dealt with the conflicts in the evidence regarding the assertions of Aboriginality as a rejection of their evidence. The Tribunal did not expressly reject that evidence at all. What it did, carefully and at some length, was to explain that the weight of evidence for an alternative, innocent hypothesis concerning the decision to annul their appointments, led it to conclude that the appellants had not discharged the onus of proof.

63 The Tribunal also gave close consideration to the evidence adduced by the respondent’s witnesses. True that more could have been said about individual witnesses, their demeanours and an express assessment of their relative credibilities could have been provided. Nevertheless, the reasons given show that the allegations by the appellants against, for example, Mr Oxley were largely unsupported and in some instances, such as the claim that Mr Oxley regarded Mr Shaw as a ‘troublemaker’ even before Mr Shaw arrived at Bourke Public School, were untrue. (Reasons for Decision at [43])

64 Given that the Tribunal had the advantage of seeing all the witnesses and considering the interlocking pieces of evidence, and given that it outlined those pieces of evidence, this was not a case ‘where nothing exists but an assertion of satisfaction on undifferentiated evidence’. (See Soulemczis per Kirby J at p 249.) In such circumstances, where the Tribunal’s ultimate findings are clear and based on evidence, an appellate tribunal should be reluctant to intervene and to superimpose its own decision.

65 Victimisation complaint In both written and oral submissions the appellants focused mainly on the race discrimination complaints. Brief mention is made of their respective complaints of victimisation (s 50 of the AD Act).

66 The appellants contend that the Tribunal failed to give adequate reasons in relation to its dealing with Mr Shaw’s complaint of victimisation. They challenge the Tribunal’s finding that it was ‘understandable’ that ‘Mr Loxley would need to approach the ASSPA Committee and its members to clarify whether the funds were available as Mr Shaw had claimed (at [25]). They argue that as ‘a matter of logic’ it cannot be the case that it was necessary to disclose details of Mr Shaw’s complaint to investigate that complaint.

67 These submissions in truth constitute an attack on a finding made by the Tribunal. That finding was at best peripheral. It was nonetheless a finding open to the Tribunal. For the reasons as given it does not constitute an error of law.

68 This ground of appeal fails.

Alleged Error 3: Decision vitiated by delay

69 The appellants contend that the delay of some 14 months in delivering the decision vitiates the findings made. Section 80(3) of the Tribunal Act requires that a reserved decision is to be delivered within six months of the conclusion of the hearing. Section 80(4) states that a failure to comply with s 80(3) does not invalidate a reserved decision.

70 There can no argument that the delay in delivering reasons was excessive. However a lengthy delay in delivering reasons does not, of itself, justify upholding an appeal. Error must be established. Nevertheless, ‘extensive delay can constitute misconduct where the delay gives rise to the apprehension that the arbitrator has not decided the dispute on its merits’. (Sea Containers Ltd v ICT Pty Ltd [2006] NSWSC 134 per Rein J at [66]. That decision was upheld by the Court of Appeal: Sea Containers Limited v ICT Pty Limited [2006] NSWCA 327.)

71 More recently the Court of Appeal in Mastronardi v State of New South Wales [2007] NSWCA 54 held that a finding of judicial error was more readily supportable where it had been accompanied by a delay in delivering judgement. In the leading judgement, Basten JA commented (at [70]):

There is always a risk that an appellate court (and indeed appellate counsel) may seek to pick holes in the reasoning of a trial judge after the event, without fully appreciating the flavour of the case as presented at trial. The dangers of reconstruction on appeal were noted in Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [3] (Gleeson CJ, McHugh and Gummow JJ). Matters of emphasis cannot readily be gleaned from a reading of the transcript, nor is it always practicable (or sometimes even possible) for the appellate court to read the whole transcript of argument. However, a delay of a year or more may support an inference that the trial judge did not omit some consideration, or work on a basis not immediately apparent from the written record, due to reliance on the manner in which the issues were presented or developed at trial.

72 The appellants concede that ‘something more’ than delay in delivering reasons needs to be identified to ground an error of law. Here they contend that the combination of inadequate reasons, ‘at least’ one significant factual error (the Tribunal recorded the date of the petition as 22 November 1999 when in fact it was 22 September 1999 (at [26])); and, the failure to give proper weight to the ‘clear evidence of racial hostility at the School’ coupled with the delay in the delivery of reasons, give rise to the apprehension that the matter was not properly decided.

73 In our view the shortcomings cited by the appellants together with the delay in delivering reasons do not give rise to an objective apprehension that the Tribunal failed to determine the dispute on its own merits. On the contrary, regrettable as the delay is, the consideration given to the decision suggests that the merits were closely scrutinised.

74 This ground also fails.

Alleged Error 4: Decision to admit the respondent’s witness statements

75 The fourth ground of appeal is that the Tribunal erred in admitting witness statements containing opinions and assertions of fact that were unparticularised as to place, time and circumstance requiring the appellants to cross-examine the witnesses as to those particulars and then to put any relevant counter-propositions to them. It is contended that this was procedurally unfair to the appellants.

76 A number of matters are to be observed. Given the passage of time since the events in question, it was, it seems, the common experience of witnesses for both parties that they had difficulties in remembering times and places with an exactness. The Tribunal appears to have approached that problem by allowing both sides to tender statements which were largely unparticularised. This was not ideal for either party but it would have been more unfair to either or both parties if witnesses had been entirely shut out of the proceedings because they could not provide specific details of such particulars. Both sides were similarly disadvantaged in this way.

77 Second, it is the Tribunal’s function and duty to ensure that the real issues between the parties are ventilated and determined. To prevent one party or the other from adducing its case or part of it is a last resort.

78 Third, while it is true that a failure to provide particulars is a disadvantage to the party seeking to test the evidence, the corollary to that proposition is that the party advancing the proposition is also disadvantaged because a failure or inability to provide particulars tends to undermine the cogency of the evidence and to diminish its weight considerably. By how much its weight is diminished depends on the circumstances of the individual case as does the magnitude of the disadvantage to the cross-examining party.

79 The Tribunal is not bound by the rules of evidence (s 73(2) of the Tribunal Act). It may determine its own procedure (s 73(1) of the Tribunal Act). It has a discretion to admit or to refuse to admit evidence subject only to the rules of procedural fairness and its general obligation to exercise its discretion judicially (s 73(2) of the Tribunal Act).

80 Nothing has been put in the appellants’ submissions which suggests to us that the Tribunal failed to exercise its discretion properly, that it took into account irrelevant considerations or failed to take into account, and give proper weight to, relevant considerations. Moreover, the appellants were able, through their counsel, to test the respondent’s witnesses by means of cross-examination. There was no failure of procedural fairness.

81 This ground of appeal fails.

Extension to the merits

82 Section 113(2) of the Tribunal Act provides that an appeal may be made on any question of law and with leave of the Panel, may extend to a review of the merits of the appealable decision.

83 The Court of Appeal in Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245, overturning previous Tribunal decisions to the contrary, held that in respect of an internal appeal it is not necessary that an error of law be demonstrated before consideration can be given to extending an appeal to the merits. Since Lloyd, a restrained approach has been taken to the exercise of that discretion. In declining to grant leave to extend to the merits, the Appeal Panel, in Tarjali-Diab v Director-General, Department of Commerce (EOD) [2006] NSWADTAP 41, O’Connor P presiding, said (at [33]):

The Tribunal [at first instance] had the advantage of hearing the evidence first hand. It would be the cause of considerable inconvenience and cost to the respondent if we were to allow the reopening of a case where it has been successful at first instance. Any reopening should not be lightly allowed. The appellant has not demonstrated any errors in the approach taken by the Tribunal, either in law, or in dealing with the evidence or in the fairness of its conduct of the matter.

84 In this case, as no application was made by the appellants for leave to be granted to extend to the merits, it is not necessary to determine whether the circumstances of this appeal warrant such extension.

Costs

85 The respondent seeks the costs of this Appeal.

86 The AD Act and the Tribunal Act give the Tribunal discretion to award costs. The AD Act provision is found in s 110; the corresponding provision in the Tribunal Act is in s 88. Both provisions make clear that the general principle that costs will ‘follow the event’ does not apply.

87 Section 110 of the AD Act provides:

(1) Each party to an inquiry is to pay his or her own costs, except as provided by this section.

(2) If the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs and security for costs, whether by way of interim order or otherwise, as it thinks fit.

88 Section 88(1) of the Tribunal Act is in the following terms:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

89 As observed in Murtagh & Anor v Taylor (No 2) (EOD) [2005] NSWADTAP 39 at [4], ‘different views have been expressed regarding the statutory source of an Appeal Panel’s power to award costs in an appeal brought against a decision of the Equal Opportunity Division in the exercise of the Tribunal’s jurisdiction under the AD Act’. For the reasons as follows it is not necessary to resolve that issue in these reasons.

90 The respondent submits that the circumstances of this case warrant an order of costs in respect of the directions hearing held 24 April 2007. The following chronology is relevant. The appellants filed their Notice of Appeal on 12 December 2006. On 7 February 2007 directions were made requiring the appellants among other things to file and serve upon the respondent their response to any request for particulars, and submissions, including any Amended Grounds of Appeal, within 28 days of receiving the request for further particulars from the respondent. The appellants failed to comply with those directions. The solicitor for the respondents wrote to the appellants on 10 April 2007 and advised that if the submissions remained outstanding the respondent would apply to the Tribunal for the appeal to be dismissed.

91 At the request of the respondent the matter was listed for directions on 24 April 2007. The appellants were directed to and did provide the respondent with submissions and amended grounds of appeal by 5 pm of that day. The hearing date allocated at the first case conference was not vacated.

92 The respondent contends that the directions hearing on 24 April 2007 would not have been necessary had the appellants complied with previous directions.

93 The respondent submits that the conduct of the appellant’s legal representatives in the proceedings below is also relevant to the determination of the costs application. It chronicled repeated examples of alleged disregard for directions made by the Tribunal. It contended that the timetable became, in effect, a moving feast, and as a result the respondent was forced to bear significant additional costs. The respondent contended that because of this extraordinary conduct the Tribunal below took the ‘unusual step’ of ordering the appellants’ legal representatives to pay some of its costs of the proceedings. (See Reasons for Decision at [89] - [96]).

94 It contended that that causal attitude to compliance with the Tribunal’s directions was again evident in the appeal proceedings.

95 The appellants not surprisingly opposed the application. They contend that it is relevant that their legal representation had been provided on a pro bono basis and they did not have available the resources available to the respondent.

96 Conclusions There can be no argument that the appellants’ failure to comply with directions caused the respondent to incur additional costs. The issue to be determined is whether it warrants a departure from the usual rule that each party will bear their own costs.

97 ADT Practice Note No. 12, Costs, issued on 9 October 2006 cites the failure to comply with an order or direction of the Tribunal, as an example of a ‘special circumstance’ under s 88 of the Tribunal Act.

98 In the Equal Opportunity Division there are a number of decisions where the failure of a party to comply with directions was held to be a ‘circumstance that justifies’ an order for costs. (See for example Reddy v International Cargo Express [2005] NSWADT 3; Battenberg v The Union Club (No 3) [2005] NSWADT 126.)

99 Determining whether costs should be awarded under either the AD or the Tribunal Act requires a balance to be struck between the ‘chilling effect’ of too readily ordering costs against unsuccessful complainants (see Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 at [23]) and the need to ensure that parties conduct their cases in such a way that their opponent does not incur unnecessary costs.

100 We are mindful that refusing costs in circumstances where it is plain that the conduct of one party has caused its opponent to bear additional costs could inadvertently send a message that compliance with directions of the ADT has the status of an ‘optional’ requirement. Nonetheless not all such cases will warrant a departure from the usual rule that each party is to bear its own costs. The nature and extent of the offending party’s conduct will be relevant. On this appeal the additional costs incurred by the respondent while unnecessary were not excessive; the respondent was not otherwise materially prejudiced; the appellants fully complied with the further directions made on 24 April 2007 and, proceedings were not delayed. We do not accept the argument put for the respondent that the conduct of the appellants in the proceedings below is also relevant is enough to tip the scales in favour of an exercise of our discretion to award costs. That matter was dealt with by the Tribunal below and its decision on costs. It was not challenged by either party on appeal.

101 For these reasons we are not persuaded that there are ‘circumstances that justify’ an award under s 110(2) of the AD Act or ‘special circumstances’ warranting an award of costs under s 88(1) of the Tribunal Act.

102 For these reasons the respondent’s application for costs is refused.

Orders

1. Appeal is dismissed.

2. Respondent’s application for costs is refused.