Whippy v University of New England

[2021] NSWCATAD 128

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Whippy v University of New England [2021] NSWCATAD 128

Hearing dates:

On the papers

Date of orders:

18 May 2021

Decision date:

18 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

1.   The application is dismissed.

2.   The case conference listed on 19 May 2021 is    vacated.

Catchwords:

ADMINISTRATIVE REVIEW – applicant seeking review of decision made in the Administrative and Equal Opportunity Division – not an administratively reviewable decision – not an externally or internally appealable decision – application misconceived or lacking in substance

Legislation Cited:

Administrative Decisions Review Act 1997

Anti-Discrimination Act 1977

Civil and Administrative Tribunal Act 2013

Category:

Procedural rulings

Parties:

Miles Whippy (Applicant)
University of New England (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Heesom Legal (Respondent)

File Number(s):

2021/00089981

REASONS FOR DECISION

1. On 31 March 2021 Miles Whippy lodged with the Administrative and Equal Opportunity Division of the Tribunal an application seeking review of a decision made on 19 October 2020 in matter 2020/00270314. That decision was a decision made by a Principal Member of the Tribunal sitting in the Administrative and Equal Opportunity Division. The decision was made under s 96(1) of the Anti-Discrimination Act 1977 refusing leave for a complaint made by Mr Whippy to proceed before the Tribunal. Reasons for that decision were provided orally on the day and a transcript of the reasons was provided on 4 March 2021.

2. The respondent, the University of New England, has sought an order under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that the proceedings be dismissed on the grounds that they are misconceived or lacking in substance. The primary submission of the respondent is that the Tribunal cannot review its own decision and, even if the application could be taken to be an internal appeal from the decision of 19 October 2020, a decision to refuse leave under s 96 of the Anti-Discrimination Act is not an internally appealable decision (cl 15(a) Schedule 3 CAT Act).

3. I note that at a directions hearing on 27 April 2021 the Tribunal determined that the application for dismissal is to be determined in the absence of the parties (see s 50 of the CAT Act). Directions were also made for the parties to provide submissions in relation to the application for dismissal.

4. In his submissions Mr Whippy states that his application for administrative review is on the grounds of jurisdictional error and error of law on the face of the record. He refers to the definition of decision in s 5(1)(g) of the CAT Act which provides that a decision includes “(g) doing or refusing to any other act or thing”. He then refers to the objects of the Administrative Decisions Review Act 1997 and states that the Tribunal’s decision of 19 October 2020 was not in accord with those objects for various reasons which are set out in his submissions. Mr Whippy also refers to the Tribunal’s external appeal jurisdiction provided for in s 31 of the CAT Act, although the relevance of the external appeal jurisdiction to the current application is unclear.

Does the Tribunal have jurisdiction to review the decision made on 19 October 2020?

5. Section 55 of the Administrative Decisions Review Act makes plain that the Tribunal only has jurisdiction to review “an administratively reviewable decision”. An administratively reviewable decision is defined in s 7 of the Administrative Decisions Review Act to be “a decision of an administrator over which the Tribunal has administrative review jurisdiction”. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision”.

6. There is no provision within the CAT Act or the Anti-Discrimination Act which provides that a decision of the Tribunal sitting in the Administrative and Equal Opportunity Division is an administratively reviewable decision under the Administrative Decisions Review Act. The decision made on 19 October 2020 is therefore not a decision over which the Tribunal has administrative review jurisdiction.

7. I have considered whether the decision of 19 October 2020 may fall within the Tribunal’s appeal jurisdiction and whether the application for review can be taken to be a Notice of Appeal.

8. In its appeal jurisdiction the Tribunal has external and internal appeal jurisdiction. Under s 31 of the CAT Act the Tribunal has external appeal jurisdiction over a decision made by an “external decision-maker” if legislation provides that an appeal may be made to the Tribunal against any such decision. Section 4 of the CAT Act makes plain that an “external decision-maker” means a decision-maker who is external to the Tribunal. Here, the decision maker was a Principal Member of the Tribunal and clearly not external to the Tribunal. Furthermore, there is no legislation which provides for external review of a decision of the type made on 19 October 2020. An external appeal from the decision of 19 October 2020 clearly therefore cannot be made to the Tribunal.

9. Section 80 of the CAT Act provides that an appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Section 32 of the CAT Act states that an internal appeal to an Appeal Panel can be made from any decision made by the Tribunal in proceedings for a general decision or administrative review decision. Clause 15 of Schedule 3 to the CAT Act, however, provides that there are certain decisions made by the Administrative and Equal Opportunity Division which are not internally appealable. One of these is a decision of the Tribunal for the purposes of s 96 of the Anti-Discrimination Act with respect to the granting of leave for the purposes of that section. As set out above, the decision which Mr Whippy seeks to be reviewed was a decision made under s 96 of the Anti-Discrimination Act refusing leave. The only avenue of appeal from such a decision is to the Supreme Court.

10. The decision of 19 October 2020 is therefore not a decision which is reviewable under the Administrative Review Act, nor is it an externally or internally appealable decision. The application by Mr Whippy is therefore misconceived or lacking in substances and must be dismissed under s55(1)(b) of the CAT Act.

Other matters

11. On 4 May 2021 Mr Whippy made two applications for miscellaneous orders in this matter. In one he sought removal of Heesom Legal as the University’s legal representative and in the other appears to be asking the Tribunal to make amendments to decisions made by the President of the Anti-Discrimination Board in relation to his complaints using its powers under s 53 of the CAT Act and to make decisions in his favour. Given my conclusions above, there is no need for the Tribunal to deal with these applications.

12. The matter is also listed for a case conference on 19 May 2021. As the matter is dismissed, the case conference is vacated.

Orders

1. The application is dismissed.

2. The case conference listed on 19 May 2021 is vacated.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 18 May 2021