Tu v University of Sydney

[2002] NSWADTAP 19

Set aside by Appeal: Set aside by appeal on 18 July 2003 (Court of Appeal)

Appeal Panel

CITATION:	Tu v University of Sydney [2002] NSWADTAP 19
PARTIES:	APPELLANT John Hsiao-Kong Tu RESPONDENT University of Sydney
FILE NUMBER:	019002
HEARING DATES:	12/03/2002
SUBMISSIONS CLOSED:	03/12/2002
DATE OF DECISION:	05/31/2002
DECISION UNDER APPEAL:	Tu v University of Sydney [2001] NSWADT
BEFORE:	O'Connor K - DCJ (President); Rees N - Judicial Member; Alt M - Member
CATCHWORDS:	adjournment - appealable decision - leave to appeal out of time - reconstitution of Tribunal during hearing - summary dismissal - exercise of discretion
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991004
DATE OF DECISION UNDER APPEAL:	01/10/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	LLoyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Australian Trained Doctors Overseas Inc v Director-General, NSW Department of Health [2001] NSWADTAP Crewdson v Niland & ors [2002] NSWADTAP 5 Gerlach v Clifton Bricks P/L [2002] HCA 22 Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 Maiden v Maiden (1909) 7 CLR 727 McCauley v McCauley (1910) 10 CLR 434 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 Warehouse Group (Australia) P/L v Bevendale Pty Ltd & ors [2002] VSC 108 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 Brandusoiu v Commissioner of Police [1999] NSWADTAP8 Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6
REPRESENTATION:	S Winters, barrister J Oakley, barrister
ORDERS:	1 Appeal dismissed; 2 Appeal Panel to dispose of all costs applications; 3 In regard to the question of the costs of the appeal, the respondent is to file and serve any further submissions within seven days; and the appellant is to file and serve any written submissions in reply within a further seven days.

1 This appeal is made pursuant to sections 112(1)(a) and 113(1) of the Administrative Decisions Tribunal Act 1977 (the Tribunal Act). The appeal relates to three decisions given by the Equal Opportunity Division of the Tribunal (the Tribunal) on 10 January 2001. The first and second decisions were interlocutory decisions refusing to grant an adjournment to the appellant (the complainant in the original proceedings). The third decision was the dismissal of the appellant’s complaint under the Anti-Discrimination Act 1977 (the ADA).

The Original Proceedings

2 The inquiry into the appellant’s complaint made under the ADA had been due to commence on 18 December 2000. At the opening of proceedings on that day, the Tribunal was advised that the appellant could not attend due to illness, and a medical certificate was supplied. Five days, 18 to 22 December 2000, had been set aside for the hearing. The Tribunal adjourned the hearing to 20 December 2000. On that day the appellant again failed to appear due to illness. On that occasion the Tribunal heard opening submissions from counsel for the appellant and the respondent, and received the formal tender of the referral report from the President of the Anti-Discrimination Board. It then adjourned the inquiry to resume for a period of 3 days initially, being 10, 11 and 12 January 2001. The Tribunal gave the following directions at the conclusion of the proceedings on 20 December 2000:

‘1. Complainant’s case to be heard on 10-12 January 2001. [An order for the hearing of witnesses commencing with the complainant was set down.] The direction continued – Matter to proceed whether or not Mr Tu has produced medical certificate. Should he not appear matter will proceed on the documentary material and oral submissions.

2. Any application on behalf of respondent including s 111 will be heard then.

3. Respondent to provide complainant and Tribunal copy of Reply to Points of Claim on or before Friday 22 December 2000.

4. Complainant to provide respondent and Tribunal copy of complainant’s evidence in relation to claim for damages, i.e. any documentation to be relied upon – on or before 3 January 2001.

5. Application for costs reserved.

6. Application for security for costs is rejected.’

3 When the proceedings recommenced on 10 January 2001, the appellant was present with his counsel. The Tribunal had been reconstituted. There was a new presiding judicial member, with the same two non-judicial members from the previous hearing. The new presiding member advised the parties that the Tribunal had been reconstituted by the Acting President because the previous presiding member was unable to sit due to a death in her family in Melbourne. The appellant objected to the reconstitution and sought an adjournment. The Tribunal refused the application. The appellant then advised that he would appeal the ruling, and sought an adjournment. Again he was refused. The appellant, and his counsel, then withdrew from the proceedings. The respondent renewed its application for summary dismissal of the complaint. The Tribunal granted that application. The two adjournment decisions and the dismissal decision are the subject of the appeal.

Notice of Appeal

4 The right of appeal is conferred on parties by s 113(1). The scope of the right of appeal is dealt with by s 113(2) as follows:

‘ (2) An appeal:
(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.’

5 The respondent filed a notice in reply to the appeal, and short written submissions were lodged by the parties. The Appeal Panel heard oral submissions on 12 March 2002.

6 The original notice of appeal, completed in handwriting by the appellant, and filed on the day of the decisions in issue, 10 January 2001 alleged the following errors of law: misconstruction of s 79 of the Tribunal Act; and also asserted ‘The Tribunal’s decision involved error of law as no reasonable decision-maker would have made such a decision’.

7 The notice included an application to extend the appeal to the merits, and stated there ‘The Tribunal referred to the history of the proceedings without being fully aware of the difficulties faced by me when I was an unrepresented litigant.’

8 While it is not entirely clear from its text, this notice of appeal sought only to challenge the adjournment decisions; as distinct from the final decision (see further the Tribunal’s reasons for decision in respect of the dismissal decision). We note that the appellant was legally represented during most of the history of the matter, and by experienced counsel on the days of final hearing.

9 The appellant was furnished with written reasons on 8 March 2001, and lodged an amended notice of appeal on 29 March 2001.

10 The amended notice of appeal had 21 paragraphs, divided into 6 objections to the first adjournment decision, 6 in relation to the second adjournment decision and 3 in relation to the dismissal decision. Under the heading ‘review of the merits’ there were 5 items, and in a further paragraph it was asserted that the appeal was filed within time as it was less than 28 days since written reasons for decision had been delivered.

Preliminary Points raised by Respondent

(a) Time for Appeal

11 The respondent’s first preliminary point was that the appeal had been lodged out of time, and leave should not be given. As noted above, the original notice of appeal was lodged on 10 January 2001. A broader notice of appeal was lodged on 29 March 2001.

12 Section 113(3) of the Tribunal Act provides:

‘ (3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.’

13 The Tribunal is entitled to give oral reasons for decision and did so in this case: Tribunal Act, s 89(2). Where that occurs s 89(3) is applicable. Section 89(3) provides:

‘ (3) If the Tribunal does not give reasons in writing for its decision:
(a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and

(b) the Tribunal must, within 28 days after receiving the request, give the party such a statement.’

14 In this case the Registry gave notice of the decision by letter dated 11 January 2001. On 13 February 2001 the appellant’s solicitors faxed a letter to the Registry requesting access to transcripts and the like in preparation for the appeal. That letter referred to telephone contacts with the Registry two weeks earlier, and advice from the Registry to put the request in writing. Though the records are less than conclusive on the point, we are satisfied that an oral request in the nature of a request for written reasons was given within the time specified by s 113(3)(a). There was a formal written request for reasons made later by counsel on 26 February 2001. The written reasons for decision, substantially replicating the oral reasons, were issued on 8 March 2001. Accordingly the appellant had until 6 April 2001 to file a notice of appeal. The amended notice of appeal was filed on 29 March 2001.

15 The appeal was, we consider, in time; and it is not a case where leave needs to be considered.

(b) Scope of Right of Appeal from decisions of the Equal Opportunity Division

16 Section 112 of the Tribunal Act provides:

‘ 112. What is an appealable decision?

(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.

(3) A decision of an Appeal Panel is not an appealable decision for the purposes of this Part.’

17 The decisions in issue have been made in proceedings for an original decision. By virtue of s 112(1)(a), the relevant enactment, here the ADA, must expressly provide that the decision may be appealed to the Appeal Panel. Section 118 of the ADA provides:

‘ 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.’

18 The respondent submitted that the right of appeal conferred by the ADA was more limited than that conferred by the Tribunal Act. Section 112(1)(a) of the Tribunal Act, as noted above, states: an ‘appealable decision’ of the Tribunal ‘is a decision of the Tribunal … made in proceedings for … 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.’ The Appeal Panel has followed the practice of entertaining appeals in relation to interlocutory decisions, a practice which accords with the dicta of Priestley JA in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 at [23]. (These dicta were questioned by Smith JM in Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 at [112] and following.)

19 It was submitted that there was no statutory right to appeal against the Tribunal’s two decisions to refuse an adjournment on the basis that s 118 of the ADA grants a right of appeal to an Appeal Panel only against decisions of the Tribunal made pursuant to that Act. It was submitted that the two adjournment decisions under challenge were made pursuant to another Act, s 73 of the Tribunal Act. Section 73 deals with the procedural powers of the Tribunal. Sub-section (5) is the provision most relevant to the respondent’s submission, in particular para (f). Sub-section (5) follows:

‘ (5) The Tribunal:
(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing---may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.’

20 Whilst s 118 of the Anti-Discrimination Act grants a right of appeal in relation to ‘an order or other decision made by the Tribunal under this Act’, it requires an unnecessarily literal reading of that section to conclude that any decision made by the Tribunal pursuant to the broad ranging powers granted to it by the Tribunal Act is not an appealable decision. To hold otherwise would be to deny a party to proceedings before the Equal Opportunity Division of the Tribunal the right to appeal against decisions concerning matters such as the addition of a party (see s 67(4) Tribunal Act), denial of the right to be represented by an agent (see s 71(2) Tribunal Act) and denial of the right to a public hearing (see s 75(2) Tribunal Act), as the Tribunal Act not the ADA confers these powers. Further, the Equal Opportunity Division of the Tribunal is given the power to dismiss proceedings, at any stage, by both s 73(5) of the Tribunal Act and s 111 of the ADA. Section 111(3) of the ADA makes it clear that these powers are intended to operate concurrently. If the respondent’s submission concerning the narrow operation of s 118 of the ADA were accepted this would lead to the absurd result that proceedings dismissed pursuant to s 111 of the Anti-Discrimination Act could be appealed, whereas proceedings dismissed pursuant to s 73(5) of the Tribunal Act could not be appealed.

21 The jurisdiction of the Equal Opportunity Division of the Tribunal is set out in the ADA. In the main, that Division of the Tribunal conducts inquiries pursuant to s 96 of the ADA in relation to complaints referred to it by the President of the Anti-Discrimination Board. The Tribunal’s ultimate powers of disposition in relation to those complaints are found in sections 111, 113 and 114 of the ADA. Yet, like other divisions of this Tribunal, the Equal Opportunity Division may exercise the full range of powers granted by Chapter 6 of the Tribunal Act when conducting an inquiry into a complaint. These powers govern the procedures of the Tribunal when conducting inquiries pursuant to s 96 of the ADA. Powers of a similar nature to those found in Chapter 6 of the Tribunal Act were previously set out in Part 9 of the ADA. They were largely repealed by the Tribunal Act as it was clearly advantageous for the procedural powers which may be exercised by the Tribunal in its various divisions to be located in the one piece of legislation.

22 As any decision made by the Equal Opportunity Division of the Tribunal pursuant to the powers granted by Chapter 6 of the Tribunal Act is contingent upon the Tribunal having jurisdiction to conduct an inquiry under the terms of the ADA, the Equal Opportunity Division is, in reality, making a decision under the ADA when it exercises any of its procedural powers whichever Act confers them in the course of an inquiry.

23 Thus, the adjournment decisions under challenge are ‘appealable decisions’ within the meaning of s 112 of the Tribunal Act. Previous decisions of Appeal Panels, by implication, support the rejection of a narrow, literal reading of the appeal rights granted by s 118 of the ADA (see Australian Trained Doctors Overseas Inc v Director-General, NSW Department of Health [2001] NSWADTAP; Crewdson v Niland & ors [2002] NSWADTAP 5). This approach to the interpretation of the right of appeal is also, we consider, consistent with the position applicable in the ordinary courts and at common law: as to which, see Gerlach v Clifton Bricks P/L [2002] HCA 22.

ALLEGED ERRORS OF LAW

The first adjournment application

24 Counsel for the appellant submitted, after being advised on 10 January 2001 of the change in the constitution of the panel, that s 79 of the Tribunal Act required the consent of the parties to a reconstitution, and stated that the complainant did not consent to the reconstitution. The presiding member then referred to s 79(3), and said that the Tribunal would proceed on the basis of that provision.

25 Section 79 provides:

‘ 79. Reconstitution of Tribunal during hearing

(1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if:

(a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and

(b) the parties consent.

(2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act.

(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.’

26 The President’s general power in relation to constitution of the Tribunal is found in s 22 of the Tribunal Act which provides:

‘ 22. Constitution of the Tribunal for particular proceedings

(1) In exercising any of its functions, the Tribunal is to be constituted by one or more Division members of the Division to which the function concerned is allocated.

(2) The President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings.

(3) In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the President or relevant Divisional Head is to have regard to the following matters:

(a) the degree of public importance or complexity of the subject-matter of the proceedings,

(b) if the proceedings concern the review of a reviewable decision---the nature and status of the office of the administrator who made the reviewable decision,

(c) the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings,

(d) such other matters as the President or the Divisional Head considers relevant.

(4) The provisions of this section are subject to any contrary provision in this or any other Act. In particular, the Tribunal is to be constituted subject to the provisions for the constitution of the Tribunal specified in Schedule 2 in relation to the classes of matters specified in that Schedule.

(5) This section does not apply to the exercise of the functions of an Appeal Panel of the Tribunal.’

27 Counsel applied to the Tribunal to adjourn the proceedings to a time when the previous presiding member could resume.

28 Counsel referred to the fact that a history of the matter had been presented in the oral submissions made on 20 December 2000, and that it would be wasteful to have to repeat those submissions for the benefit of the new presiding member. Counsel submitted that there had been two days of hearing in December, and it was not a case where the matter had ‘barely started’. In reply counsel for the respondent referred to the numerous directions hearings that had already occurred in this matter, and occasions on which the appellant had failed to attend after filing medical certificates. Counsel for the respondent referred to the limited amount of activity that had occurred on 18 and 20 December 2000. While there was some dispute between counsel as to the extent of what had occurred on 20 December 2000, it is clear that no evidence was received apart from the formal receipt of the President’s report.

Reasons for Refusal

29 The Tribunal refused the appellant’s adjournment application, giving reasons ex tempore after a short adjournment. The written reasons issued on 8 March 2001 reiterate the oral reasons. We will refer to the oral reasons given at the time.

30 After explaining the reason for the previous presiding member’s unavailability, the Tribunal said materially:

‘The matter has a long history, and the Court time is valuable. The administration and the President have gone to substantial trouble and difficulty to ensure that the matter proceed today. Whilst the Act makes special provision under s 79 for situations such as this, and if the parties do not agree to the Judicial Member being replaced, then it makes provision for the Tribunal to proceed in an alternative manner. In deciding whether the Tribunal should proceed in an alternative manner it is proper to consider the history of the matter. It has been listed on many occasions, 18 August 1999, 27 October 1999, 17 November 1999, 15 December 1999, 7 February 2000, 30 June 2000, and there was other dates also on which the matter was listed, 27 October 1999, 2 March 2000, 5 April 2000, 18 December 2000, 20 December 2000.’ [The last two dates relate to the earlier hearing dates.]

31 The Tribunal continued:

‘The matter has been subject, for various reasons, to substantial delays. It does appear that the fact that the chairman of the Tribunal has been replaced makes little difference to the arrangements that have been made for the day. Both parties are here, there is no reason why the matter should not proceed, and the direction is already given, and the application by [counsel] for me in effect to disbar myself is refused, and the Tribunal will continue with the hearing now.’

32 Applications for adjournment are part of the ordinary routine of hearings. While interlocutory decisions are appealable, nonetheless an appellate body should give a ‘high respect for finality’ to the ‘multitude of practice decisions that must daily be made in the courts’: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 644 per Kirby P (there dealing with a costs order appeal).

33 Decisions in relation to adjournments involve the exercise of discretion. As Kirby P observed in Wentworth (No 3) : ‘Some error of principle in the exercise of the discretion, a consideration of irrelevant matters or some manifest mistake is needed to take the case out of the ordinary situation in which, wherever a discretion is exercised, minds may differ on the result: cf Maiden v Maiden (1909) 7 CLR 727 at 742; McCauley v McCauley (1910) 10 CLR 434 at 435.’ In Crewdson v Niland [2002] NSWADTAP 5 the appellant appealed against three refusals of applications for adjournment. We agree with the view expressed there that ‘[t]he refusal to grant an adjournment is an exercise of judicial discretion and is therefore governed by the principles laid down in House v The King (1936) 55 CLR 499; see also Norbis v Norbis (1986) 161 CLR 513.’ See also Gerlach v Clifton Bricks P/L [2002] HCA 22.

34 In this case the amended notice of appeal claims that it was irrelevant for the presiding member to have observed that the ‘administration and the President have gone to substantial trouble and difficulty to ensure the matter proceed today’; and to have referred to the history of substantial delays. It is, in our view, proper and commonplace for such matters to be taken into account. An adjournment application necessarily involves the question of why a delay is justified. It is to be expected that a Tribunal considering such an application will allude to the question of the desirability of any further delay. The presiding member’s reference to the efforts made by the Tribunal were also proper and consistent with the Tribunal Act’s injunction that proceedings before the Tribunal be determined in an expeditious manner (s 3).

35 The amended notice of appeal claims that it was wrong for the Tribunal to refer to the history of the proceedings because no history of the proceedings was tendered by either party. The Tribunal, we consider, was entitled to have regard to the Registry file in light of the submissions made by counsel, in particular counsel for the respondent, as to the history of the matter. Both counsel addressed on different elements of the history of the matter. The statements made by the Tribunal were based, as we see it, on those submissions and the administrative records found in the Registry file. There was no need in these circumstances for a formal fact finding inquiry of the kind pressed in the notice of appeal. The Tribunal is also enjoined by the Tribunal Act to proceed in an as informal a manner as possible (s 3). Section 73(5)(a) of that Act directs the Tribunal ‘to act as quickly as is practicable’. In determining whether to grant an application for an adjournment the Tribunal was clearly entitled, and possibly obliged, to take delay and inconvenience into consideration. The Tribunal is entitled to ‘inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice’ (s 73(2) Tribunal Act). Perusing the Tribunal file in order to determine the history of the proceedings clearly falls within this power.

36 It is also claimed that the Tribunal misconstrued the nature of the application when it made the observation that the application was seeking in effect to disbar the presiding member. This was no more than a short hand way of referring to the clear intent of the application, i.e. to have the previous presiding member resume control of the hearing.

37 The main objection, and the one most pressed in oral submissions, relates to an alleged error of law on the part of the Tribunal in construing s 79 of the Act.

38 The appeal seeks, in effect, to put in issue the exercise of discretion by the Acting President in deciding to reconstitute the Tribunal. In our view this is not an ‘appealable decision’ within the meaning of s 112 of the Tribunal Act. As noted earlier, under s 112(1) (a) an ‘appealable decision’ of the Tribunal ‘is a decision of the Tribunal … made in proceedings for … an original decision …’. (Emphasis added.)

39 The challenge under s 79 is to the exercise of a statutory discretion vested in the President as a Head of Jurisdiction. The question of whether the President’s powers of this kind have been exercised properly is not a question relating to a ‘decision of the Tribunal … made in proceedings …’. It is a decision made as part of the general administration of the Tribunal. It is made, necessarily, outside the proceedings though it may occur (as here) after the proceedings have commenced because of special circumstances. It belongs to that class of statutory administrative decisions which is judicially reviewable, and the appropriate forum is the Supreme Court.

40 In our view the Tribunal below need not have entertained any submissions from counsel in relation to the meaning and effect of s 79. The Tribunal’s constitution accorded with the requirements applying to panels hearing ADA complaints (as to which see Tribunal Act, s 22(4) and Schedule 2, Part 2, cl 3). The position may be different if the Tribunal had not been constituted in accordance with the Act, in which case a jurisdictional issue may arise: see, for example, Warehouse Group (Australia) P/L v Bevendale Pty Ltd & ors [2002] VSC 108.

41 The question of whether the President should have ascertained the attitude of the parties before reconstituting the panel, and only then moved to exercise any powers under s 79(3), were not ones for the Tribunal to address or determine. The Acting President could also have been asked to reconsider the exercise of that power, as it was clearly not spent just because it had been exercised (see s 48 Interpretation Act 1987; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).

42 Decisions of the President under s 79 are not ‘appealable decisions’ within the meaning of s 112 of the Tribunal Act.

The second adjournment application

43 Following delivery of the ex tempore reasons refusing the first adjournment application, counsel for the appellant, informed the Tribunal that her client intended to appeal, and asked for an adjournment pending the ruling of the Appeal Panel in relation to the decision. The respondent opposed the application. There was some discussion as to whether the decision was an ‘appealable decision’. Counsel for the appellant submitted that it was the ‘normal course’ for a court or tribunal to adjourn once an appeal had been foreshadowed in respect of an interlocutory ruling. Counsel for the appellant also indicated that she would be appealing on the interpretation of s 79. Counsel for the respondent made submissions as to whether the decision not to adjourn and the decision relating to s 79 were appealable. She also referred to the need to progress the matter, and issue of convenience. There were submissions in reply by counsel for the complainant, then an extended discussion of the meaning and operation of s 79 with the presiding member.

Reasons for Refusal

44 The Tribunal gave ex tempore oral reasons after the luncheon adjournment, refusing the application. It said, materially:

‘In the Tribunal’s view the reconstituted Tribunal is now governed by section 79(3) … .

The complaint in the present case was made on 1 December 1996 and has been listed at least eleven times. (See earlier Judgment.) Since then the President has made every effort under s 79(1) to get the matter on train today. It is time, in our view, for the proceedings to be determined. The Tribunal has set aside three days for the hearing and all parties are present. The fact that [the previous presiding member] is not present does not appear to matter in any way as it can proceed as if she were here. Whilst notwithstanding that an appeal has been lodged, and having regard to all the matters raised before us, we are of the view that the application for the adjournment should be refused.’

45 The amended notice of appeal objects to this decision on the ground that the Tribunal erred in law in finding that it was governed by s 79(3) when the pre-conditions set out in s 79(1) had not been met. For the reasons already given, it was not necessary for the Tribunal to concern itself with this issue in circumstances where an apparently regular decision had been made by the Acting President. The proper forum is the Supreme Court. The Tribunal need not have made the observation that it did.

46 The remainder of its observations went to the exercise of the discretion in relation to an adjournment application. As to these the appellant objects that the history was an irrelevant consideration, that there was not a formal tender of the history, that the utterance that ‘it is time’ for the proceedings to be determined was irrelevant, that the time set aside by the Tribunal for hearing was an irrelevant consideration, and that it was an error of law not to grant the application when the appeal was foreshadowed; as to have proceeded would have rendered the foreshadowed appeal ‘otiose’.

47 As to all but the last point, we reiterate our earlier observations. As to the last point, we note that while it is frequently the case that an adjournment might be granted where an appeal is foreshadowed in relation to an important interlocutory ruling, there is no rule of law to that effect. No authority was cited for any such rule of law.

48 This is not a case where the refusal of the adjournment application caused some fundamental unfairness to the party applying for the adjournment. (In that regard we note that the Tribunal Act’s scheme provides a safeguard against any such unfairness in the form of a facility for obtaining a stay of the operation of an order which is the subject of an appeal: see s 116 of the Tribunal Act.)

Dismissal Decision

49 Following refusal of the second adjournment application, the Tribunal granted counsel a short adjournment to consult her client. On resumption she said (transcript, 18-19):

‘ Ms Winters : … There are two matters. The first is, and I make this perfectly clear and put it on the record, my client does not wish to pursue his complaint, and he wishes to pursue it once the appeal has been determined, regardless of the outcome of the appeal. That is, the appeal that has been lodged this morning in relation to the Tribunal’s earlier decision, and concerning the reconstitution of the Tribunal. However, in relation to the most recent decision of the Tribunal, my client has instructed me and my instructing solicitor that he wishes to take no further part in proceedings before the Tribunal today, or for the remainder of this week, or until there is some decision of the appeal panel.

And, as such, on that basis, I seek to be excused from further attendance.’

50 The Tribunal noted the contents of the statement by counsel for the applicant, quoted above. The Tribunal continued:

‘On the basis of these instructions she asked leave to be excused from attendance. Ms Winters was excused from attendance.’

51 Counsel was excused. The respondent then made an application to the Tribunal to dismiss the complaint under s 111(1) of the ADA, which provides:

‘ 111. Tribunal may dismiss frivolous etc complaints

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

(1A) …

(1B) …

(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

(3) ….’.

52 It was to be expected that the Tribunal would receive an application for summary dismissal, and act on it. These possibilities would, we consider, have been well known to counsel and should have been well known to the appellant. The respondent had already foreshadowed a s 111 application on or before 20 December 2000, the application being the subject of a direction on that occasion.

Reasons for Dismissal Decision

53 The Tribunal said in relation to the s 111 application:

‘[It] is proper that the … application be acceded [to] and that the complaint be dismissed under s 111 on the basis that the complainant, his solicitor and counsel, are no longer before the Court. This in our view, leaves us without a party to the proceedings and falls within the terms of section 111 – ‘for any other reason.’’

54 In the amended notice of appeal, the appellant makes three objections to the dismissal decision. The first is that the Tribunal erred in law in relying on the ground that the appellant and his legal representatives were no longer before the Court, in circumstances where the Tribunal had earlier noted that the client wished to pursue his appeal before proceeding with the complaint.

55 It is plain that the appellant chose not to continue to participate in the hearing, in circumstances where he was legally represented.

56 In our view, it is clearly a relevant consideration in considering whether to enter final orders that a party, legally represented, has chosen to desist from participating in proceedings.

57 The second alleged error is that it the Tribunal wrongly stated that it was left without a party to the proceedings. This observation was simply, in our view, a short hand way of describing the effect of the voluntary withdrawal on the nature of the contest. Finally there is a generalised objection that the Tribunal erred in law by continuing on and holding the inquiry. Without a complainant, plainly there was no justification for continuing to hold an inquiry.

58 There was, in our view, ample grounds for the Tribunal’s decision that this set of circumstances fell within the category of ‘another reason’ warranting the exercise of the s 111 discretion. The power granted by s 111 of the ADA is broad. In Crewdson v Niland & Ors [2002] NSWADTAP 5 an Appeal Panel held that s 111 permitted the Tribunal to dismiss a case for want of prosecution. That was what happened in this case. The Tribunal was ready to fulfil its statutory duty to conduct an inquiry into the appellant’s complaint when the appellant chose to withdraw from the proceedings. He did so at his own risk.

59 There was no error of law in the Tribunal’s decision to dismiss the complaint.

Review of the Merits

60 In earlier cases Appeal Panels have taken the view that the wording of s 113 requires identification of an error of law as a pre-requisite to leave being granted to review the merits of a decision (see Brandusoiu v Commissioner of Police [1999] NSWADTAP 8; Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6). No reason has been put to us in this case why we should depart from that view. Accordingly, as no errors of law have been identified, leave will not be granted to review the merits of the decisions.

61 The present appeal is, in our view, entirely without merit.

Costs

62 At the time of the summary dismissal decision, the respondent renewed its application for costs (a matter reserved in the directions issued on 20 December 2000). Both parties were directed to make written submissions on costs within one month. Both parties filed submissions. There has been no decision issued. The respondent has also applied for costs of the appeal. In these circumstances it is, we consider, appropriate and more expedient for the Appeal Panel to dispose of all costs applications. In that regard we will allow the respondent to make any further submissions on the costs of the appeal; and the appellant to make any written submissions in reply.

ORDER

1. Appeal dismissed.

2. Appeal Panel to dispose of all costs applications.

3. In regard to the question of the costs of the appeal, the respondent is to file and serve any further submissions within seven days; and the appellant is to file and serve any written submissions in reply within a further seven days.