Z v University of A, Dr D and B (No 6)

[2003] NSWADT 260

CITATION:	Z v University of A, Dr D and B (No 6) [2003] NSWADT 260
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Z FIRST RESPONDENT University of A SECOND RESPONDENT Dr D THIRD RESPONDENT B
FILE NUMBER:	001001
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11/17/2003
DATE OF DECISION:	12/12/2003
BEFORE:	Goode P - Judicial Member; Clayton S - Member; McDonald O - Member
APPLICATION:	Application to re-open case
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Z (No. 3) v University of A [2001] NSWADT 182 French v Sydney Turf Club Ltd [2002] NSWADT 24 Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 Joyce v GIO (NSW) (21 July 1976 unreported) Bearns v Bearns-Hayes ( 4 September 1996 unreported) Haig v Minister Administering the National Park and Wildlife Act (1994) 85 LGERA 143
REPRESENTATION:	APPLICANT In person RESPONDENTS J Oakley, barrister
ORDERS:	1 The application is dismissed

1 The Applicant seeks leave from the Tribunal to re-open his case for the purpose of presenting additional evidence. The application is made at a time when the hearing on the substantive case has concluded but the Tribunal’s decision has not yet been delivered. The Respondents oppose the application.

2 On 30 September 1977 the Applicant lodged a complaint with the Anti-Discrimination Board (‘the Board’) alleging that between September 1995 and April 1997, he had been subjected to unlawful discrimination on the ground that he was presumed to be homosexual. (The Applicant maintains that he is not a homosexual person and has never claimed to be.) He also alleged that he had been victimised.

3 Over the following 2 years the Applicant engaged in lengthy correspondence with the Board. In addition to making wide- ranging allegations of unlawful discrimination and victimisation, his correspondence contained allegations of fraud, gross academic misconduct and plagiarism. The President referred the complaint to the Tribunal on 19 January 2000 pursuant to s 94(1) of the Anti-Discrimination Act 1977 (the ‘ADA’). The only respondent named by the President of the Board in the letter of referral was the First Respondent.

4 In due course the Applicant formally applied to the Tribunal to join 9 individual persons and another university as respondents to the proceedings. The Tribunal joined the second and third respondents only: see Z v University of A (No.3) [2001] NSWADT 182.

5 In addition to dealing with various interlocutory matters, the Tribunal heard 10 days of evidence over the period 26 August 2002 to 26 March 2003 and 2 days of oral submissions on 5 and 6 June 2003. Detailed written submissions were also filed with the Tribunal.

6 In the course of filing supplementary written submissions with the Tribunal on 25 August 2003, the Applicant also sought to file an affidavit which had been affirmed by him the previous day. By letter dated 27 August 2003, the Respondents advised the Registrar of the Tribunal that they objected to the affidavit being received as evidence in the Applicant’s case and submitted that it would be inappropriate to accept the document as part of the Applicant’s final submissions. Thereafter the Applicant filed written submissions seeking leave to re-open his case for the purpose of having his affidavit of 24 August 2003 received into evidence. The Respondents filed written submissions opposing the Applicant’s request.

The Proposed Evidence

7 The proposed evidence is set out in the Applicant’s affidavit of 24 August 2003. The Applicant submits that the affidavit clarifies the following major points:

(1) At all relevant times Dr D was the Honours’ coordinator responsible for receiving and submitting students’ results.

(2) Dr D was the only Honours’ coordinator during the relevant period.

(3) Dr D failed to provide the Applicant with any assistance in the econometrics section of his thesis yet gave substantial help to Mr Scully.

8 The Respondents submit that the Tribunal should not grant leave to the Applicant to re-open his case. They rely on the following matters:

(1) The Tribunal is required to act as quickly as practicable. As a general proposition there must be an end to litigation. The hearing of the matter has already taken a substantial number of days and there have also been various interlocutory applications and extensive written submissions.

(2) The Applicant has had ample opportunity to present his case. None of the matters raised in his affidavit could be regarded as fresh evidence. All of the incidents referred to in the affidavit occurred between 6 and 8 years ago and presumably he was aware of them well before the commencement of the hearing.

(3) The matters referred to in the affidavit were either the subject of evidence during the course of the hearing or do not relate to the matters which are the subject of the inquiry. The relevance of most of the matters is not apparent although some may relate to issues of credit. Generally evidence which is only relevant to a witness’s credibility is not admissible.

(4) If the affidavit were to be admitted, the Respondents would wish to cross examine the Applicant on the contents of it, be given the opportunity to call evidence in reply and be awarded the costs incurred as a result of the Applicant re-opening his case.

9 In reply to the Respondents’ submissions the Applicant submits:

(1) While the Tribunal is required to act as quickly as practicable, it must afford the parties natural justice.

(2) The Tribunal is required to ensure that all relevant material is disclosed to it.

(3) The proposed evidence was not seen by the Applicant as relevant at the time he wrote his original affidavit.

(4) The evidence is not ‘new’. There is no need for the Applicant to be cross examined.

(5) Given the long history of the proceedings, any perceived delays would be insignificant.

10 The Tribunal’s procedural powers are set out in s 73 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). Relevantly s 73 provides:

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself of any matter in such manner as it thinks fit, subject to the rules of natural justice

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(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

….

11 We are satisfied that s 73 gives the Tribunal the discretionary power to allow a party to re-open his or her case, even after the hearing has concluded and the Tribunal’s decision has been reserved, provided it does so in accordance with equity, good conscience and the substantial merits of the case. As noted by the Tribunal in French v Sydney Turf Club Ltd [2002] NSWADT 24 at [33], this approach is consistent with the views expressed by the High Court, the NSW Court of Appeal and other relevant authorities. These cases are discussed in French v Sydney Turf Club Ltd at [34] to [42].

12 The guiding principle seems to be whether the interests of justice would be better served by allowing or rejecting the application to re-open the case in question: see, for example, the judgment of the Court of Appeal in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; the remarks of Sheppard J in Joyce v GIO (NSW) (21 July 1976 unreported); and the observations of Young J in Bearns v Bearns- Hayes (4 September 1996 unreported).

13 In Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143 the NSW Court of Appeal declined to exercise its discretion in favour of re-opening an appeal which had been ‘perfected’ some 4 years earlier. Kirby P (as he then was) at 152-154 emphasised that even in cases where the Court’s judgment or order has not been perfected, special circumstances must be shown to enliven the Court’s jurisdiction because:

(T)he purpose of the jurisdiction is not to provide a back door method by which unsuccessful litigants can seek to re-argue their cases or simply for the purpose of giving a party the opportunity to present a case to better advantage.

Relevant Factors in the Exercise of the Tribunal’s Discretion

14 In French v Sydney Turf Club Ltd [2002] NSWADT 24 at [43] the Tribunal listed a number of relevant factors which it considered should be taken into account when exercising the discretion to re-open a party’s case (in circumstances where the hearing has concluded but the Tribunal’s decision is reserved). The Tribunal stated that it had based these factors on the decided authorities as well as s 73 of the ADT Act. The relevant factors include:

(1) The nature and extent of the proposed additional evidence.

(2) The extent to which it could affect the outcome of the case.

(3) Whether the evidence is important or peripheral to the main issues in the case.

(4) The reasons why it was not presented at the hearing (if known) eg, whether it was overlooked, the result of error or misunderstanding, or a deliberate tactical decision.

(5) The nature and extent of the surprise, embarrassment and prejudice (if any) to the opposing party.

(6) Whether additional costs would be incurred by the opposing party. If so, to what extent.

(7) Whether reception of the evidence would unduly prolong proceedings and/or require witnesses to be recalled or new evidence to be gathered by the opposing party.

(8) The extent to which fairness and the interests of justice would be better served by allowing or rejecting the evidence.

15 We have carefully considered all the relevant matters raised by both the Applicant and the Respondents. The proposed material cannot be classified as fresh evidence. The Tribunal has already heard lengthy evidence in relation to the matters set out in para 7 above. While the affidavit relied on by the Applicant seeks to clarify these matters, we do not consider that it advances the Applicant’s case in a significant way or that it would make a real difference to the outcome of the case. Moreover the Respondents have indicated that they will wish to cross-examine the Applicant and be given the opportunity to call evidence in reply. Necessarily this will entail expense for both parties and will unduly prolong the hearing.

Conclusion

16 We find that the interests of justice do not require that that the Applicant’s case be re-opened for the purpose of admitting into evidence the Applicant’s affidavit of 24 August 2003.

Orders

17 The application is dismissed.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR