CBL v Southern Cross University

NCAT Administrative and Equal Opportunity|2017-03-02

Solicitors: B Atkinson, University Lawyer (Respondent) File Number(s): 2016/00378530

reasons for decision

In these reasons, the name of the Applicant has been anonymised so as to preserve the privacy of his personal affairs. In these reasons the Applicant is referred to as CBL.
This is an application by CBL requesting that the Tribunal set aside the decisions in matters 1510350 and 1510367. The application is brought pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act")
The basis for the application is that the presiding member in those matters, Senior Member Lucy, has not provided written reasons in relation to oral applications for the Senior Member to recuse herself. CBL made the applications during the hearing on 4 April 2016. The requirement to provide written reasons is provided for by subsection 62(2) of the NCAT Act.
CBL contends that he made several requests for Senior Member Lucy to recuse herself. By letter dated 29 March 2016 he made a written application for disqualification on the basis of apprehended bias. It appears that he made three oral applications for her disqualification at the hearing on 4 April 2016. CBL acknowledges that he received the transcript of the ex tempore decision which he says purports to provide a written statement reasons for the disqualification request dated 29 March 2016 and one of the oral requests made at the commencement of the hearing. However, he contends that the Senior Member has yet to provide a written statement of reasons for her decision to decline the two further oral disqualification requests. He further contends that he is entitled to a written statement of reasons for her decision to reject those two oral disqualification requests.

Chronology of events

CBL provided the following chronology of events regarding this application under NCAT Section 53: "a. On 29/3/16, I wrote to the NCAT Registrar with a written request that SM Lucy disqualify herself from these proceedings, on grounds of apprehended bias. The application stipulated three grounds for the request. b. On 4/4/16, at a hearing, SM Lucy dealt with my written request for disqualification, and during this discussion I added a fourth ground. SM Lucy declined to disqualify herself. In the course of the hearing, I subsequently made two further and separate disqualification requests, this time oral requests for disqualification, arising out of the conduct of SM Lucy during the hearing. Neither of these subsequent requests was granted. c. On 5/4/16, I made application for a written statement of reasons for the decisions of SM Lucy not to disqualify herself in these matters, as I was entitled to do pursuant to NCAT Section 62. This was within the statutory time-limit for making such a request. d. On 29/4/16, in an abundance of caution, I again wrote to the NCAT registry, requesting "a written statement of reasons for the decisions made in the hearing earlier this month by Snr Member Lucy, in matters NCAT 1310350 and 1510367". e. On 27/5/16, I made an administrative complaint regarding non-receipt of the statement of reasons. f. On 17/6/16, the NCAT Executive Officer wrote to me: "The Tribunal's service standard is to provide reasons within 28 days of the receipt of the request". The Executive Officer also forwarded me two sets of written statements of reasons dated 4/4/16, although notably written reasons for the decisions of SM Lucy not to accede to the two oral disqualification requests was not included. g. On 24/6/16, I lodged a complaint with NCAT, that "SM Lucy has yet to provide a written statement of reasons for the two disqualification requests made orally during the Hearing of 4/4/16". Further, in this complaint to NCAT, I explained clearly the outcome I was seeking, namely, "For SM Lucy to be reminded of my request for a statement of reasons, and for SM Lucy to provide an indication as to when she believe she will be in a position to provide the statement of reasons (for the decision to refuse the oral disqualification applications made on 4/4/16)". h. On 22/7/16, the NCAT Executive Officer replied to my complaint. She indicated she understood (correctly) the nature of my request, namely, "I understand from your complaint that you are seeking a statement of reasons for the refusal of two verbal request for SM Lucy to disqualify herself ... made at the hearing on 4/4/16". In this letter, the Executive Officer also forwarded me a copy of the recording of the hearing of 4/4/16, alleging that SM Lucy "deals with your verbal request to disqualify at about counter marks 28:37 on Disc 3 and 18:14 on Disc 5". i. On 3/8/16 I attempted, unsuccessfully, to speak with the NCAT Executive Officer by telephone. j. On 12/8/16, I made a further complaint to NCAT, pointing out was still yet to receive any written statement of reasons from SM Lucy for her decisions with regard to the oral requests for SM to disqualify herself, made at the hearing on 4/4/16. k. On 6/9/16, in an NCAT conference dealing with another matter, chaired by SM Lucy, I raised, informally, with SM Lucy the fact that I was still awaiting the written statement of reasons request. SM Lucy indicated that she would look into this. l. On 13/9/16, the NCAT Executive Officer wrote to me, indicating that "I have received advice from SM Lucy that she can provide you with nothing else in terms of her deciding not to disqualify herself and that you have the complete reasons. I attach again copies of those written reasons" [copy of document dated 4/4/16 from SM Lucy was attached]. The Executive Officer also indicated she would not be responding to any further correspondence on this issue.
CBL submits that this chronology indicates that he has made exhaustive efforts to obtain the requested written statement of reasons and it is therefore appropriate for him to make an application under section 53 of the NCAT Act.

Applicable legislation

Section 53 of the NCAT Act provides: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
Section 62 of the NCAT Act provides that: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
Section 33 of the Interpretation Act 1987 provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Relevant Caselaw

I have been referred to a decision by Principal Member Redfern in XDX [2014] NSWCATGD 38 ("the XDX case"), a decision in the Tribunal's Guardianship Division. The Principal Member dealt with an application to set aside orders made in the proceedings. At paragraphs [17] - [18] of the decision she noted: 17. Mr UMT contended that the Tribunal should set aside the orders made on 29 July 2014 pursuant to s 53(4) of the Civil and Administrative Tribunal Act 2013 NSW (the CAT Act) because the Tribunal had failed to comply with subs 45(1) and (3) which make provision in relation to the representation of parties in proceedings before the Tribunal. Relevantly, s 45(1) provides that a person has the carriage of their own case and may be represented by another party only if the Tribunal grants leave. Subsection (3) provides that the Tribunal may grant or refused leave at its discretion. According to Mr UMT's submissions, the Tribunal decision and the conduct of the hearing on 29 July 2007 was "influenced by the comments/representation" made by Mr JCN, who is a former partner of Ms DCN and a legally qualified person of seniority. This was to the disadvantage of Mr UMT and his brother, Mr NET, and the Tribunal failed to offer an opportunity for Mr UMT and Mr NET to be represented. The Tribunal also failed to protect Ms XDX's "human rights" and respect her decision in appointing Mr UMT and Mr NET as her attorneys. 18. Secondly, Mr UMT contended that the decision of the Tribunal should be set aside pursuant to section 63 at the CAT Act because there were errors in the decision. He identified the errors in his letter to the Tribunal dated 29 August 2014 and in his written submissions referred to the failure of the Tribunal to protect Ms XDX's human rights.
Principal Member Redfern discussed the Tribunal's power to set aside and/or vary a decision from paragraph [19] - [22]. She stated: 19. The CAT Act empowers the Tribunal to set aside and/or vary a decision in four circumstances. 20. First, a party may lodge an internal appeal to the Appeal Panel of the Tribunal on a question of law or with leave under Part 6, Division 2. The Tribunal may make a number of orders in determining an internal appeal, including orders to set aside or vary the decision which is the subject of the appeal. Secondly, the Tribunal may set aside or vary a decision under reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) if all parties consent or if the decision was made in the absence of the party. Neither of these provisions applies. Mr UMT and Mr NET did not appeal the decision of the Tribunal and there is no contest that the pre-conditions to enliven the discretion under reg 9 have not been met. Accordingly, the decision of 29 July 2014 cannot be set aside or varied on either of these grounds. 21. The third source of power to set aside or vary a decision is contained in s 53 of the CAT Act … 22. Section 63 of the CAT Act allows the Tribunal to "correct errors" in decisions but in the limited circumstances prescribed …
I agree with that summary.
Clause 9 of the Civil and Administrative Tribunal Regulation 2013 and section 63 of the NCAT Act are not applicable in the circumstances of this matter.
In regard to section 53 of the NCAT Act Principal Member Redfern stated: 28. ... Section 53 focuses on non-compliance with provisions and procedural rules that create any irregularity. There is no definition of "irregularity" in the CAT Act but the plain English meaning, as set out in the Oxford English Dictionary, connotes "not in conformity with [a] rule or principle." Section 53(3) refers to "the provisions of the Act and procedural rules." While on its face this section may encompass a wide range of provisions and rules, including those provisions directed to procedural fairness, to interpret the effect of s 53(4) so broadly would unnecessarily trespass on the rights of appeal established in Part 6 of the CAT Act. Section 53 is a beneficial but practical provision intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole. Furthermore, s 53 is directed to the conduct and actions of the parties, not the Tribunal. 29. Even if I am wrong on this and my interpretation of the provision is unduly restrictive, s 53(4) gives the Tribunal discretion to set aside, wholly or partly, proceedings or a decision in the proceedings. Having regard to the remedies available to parties under Part 6 and regulation 9, in my view it would not be appropriate for the discretion under s 53(4) to be exercised in circumstances where these alternative remedies could be more properly utilised. To exercise the discretion such circumstances would defeat the provisions of Part 6 and regulation 9 and undermine the objects of the CAT Act. Parties are entitled to finality in the determination of their disputes. Where there has been a hearing conducted and a decision is made by Tribunal, the decision should stand unless challenged on appeal in accordance with the provisions of the CAT Act or under the terms of regulation 9. 30. I therefore reject Mr UMT's application to set aside the decision of the Tribunal pursuant to s 53(4) of the CAT Act.
CBL referred to two further decisions - Dornan v Riordan (1990) 24 FCA 564 and Craig v South Australia (1995) 84 CLR 163. He did not refer to specific discussion in either of those cases but he submitted that both cases confirm the principle that a tribunal's failure to comply with a statute compelling it to give reasons for its decision is an error of law, and constitutes grounds for setting aside a decision.

CBL's case

CBL made both oral and written submissions in regard to his argument that the failure to provide written reasons is significant and warrants setting aside the proceedings.
He accepts that it is implicit in section 53 of the NCAT Act that an irregularity must be significant in order for the Tribunal to take the action of striking out proceedings and decisions and contends that there are a range of reasons why the breach in this instance should properly be considered significant.
He submits that the absence of bias or perceived bias is crucial for confidence in any justice system, and thus an application for a Tribunal Member to disqualify themselves due to actual or apprehended bias is a serious issue. Further, if the Tribunal Member rejects an application for disqualification, the written statement of reasons for this is also significant.
He contends that in this instance no written reasons at all have been provided. He further contends that a written statement of reasons for decisions is a key mechanism whereby the Tribunal operates as an open and accountable body and that his ability to make a reasoned appeal on the issue of bias is prejudiced through that failure.
CBL does not dispute that the NCAT Act provides an avenue of appeal to the Appeal Panel against the Senior Member's decision. However, he submits that a right of appeal should not necessarily exclude a right to set aside a decision, especially given that a set aside application is simpler and cheaper than an appeal. He referred to the Tribunal's publication Guideline 1: Internal Appeals ("Guideline 1") as support for that view. He submits that if there is a difficulty or problem with a decision of the Tribunal and if there has been a failure to comply with the provision of the Act, then a party has a right to make a set aside application, as an alternative to appealing. He further submits that a set aside application should be a simple and low-cost alternative to an appeal, and thus is in keeping with the Tribunal's Guiding Principle of seeking a "just, quick and cheap resolution of real issues".
In relation to the XDX case CBL submits that whilst previous judgments ought to be considered persuasive, this does not necessarily mean that such judgments should be always considered binding. He contends that in this case Guideline 1 ought to take precedence over the comments of Principal Member Redfern at Paragraph 28 in the XDX case. The basis of this argument is that the Guideline represents the official view of the Tribunal and therefore it should be adopted.
In any event, CBL submits that the circumstances of this matter are different to those in the XDX case. The XDX case concerned an exercise of discretion by the Tribunal. In contrast this matter concerns the mandatory requirement for the Tribunal to give a written statement of reasons when requested.
CBL contends that there are compelling arguments in favour of revisiting the comments at Paragraph 28 in the XDX case. He submitted that the comments at Paragraph 28 run counter to what is actually stated in section 53 of the NCAT Act.
He submitted: a) SM Redfern argues that Section 53 does not apply because a wide and broad interpretation "would unnecessarily trespass on the rights of appeal [established under the NCAT Act]". The word "trespass" is pejorative, indicating some kind of illegal or illegitimate action. SM Redfern, however, does not indicate any reasoning as to why she believes that utilizing Section 53 to set aside proceedings or a decision, where there has been a breach of the Act, is supposedly illegal or illegitimate. b) Further, if it were not the intention that under NCAT Act 53 it would be possible to nullify proceedings or a decision, then at 53(3) the Parliament would not have added the words "unless the Tribunal determines otherwise" and Parliament would not have added 53(4). c) SM Redfern then argues that NCAT Act Section 53 "is intended to give effect to documents and decisions affected by technical procedural defects and to give the Tribunal discretion to correct such defects. This is clear from the language, heading and context of s 53 when read as a whole". Whilst what SM Redfern says may be accurate with regard to NCAT Act Section 53 (1) and (2), it is difficult to see the reasoning as to how this could apply to NCAT Act Section 53 (3) and (4). d) Further, if the intention of Parliament with NCAT Act Section 53 was merely to deal with amending defects, then logically the heading would have been "Amendments". This is not the case. The heading is "Amendments and Irregularities". e) Further, if it were not the intention that under NCAT Act 53 it would be possible to nullify proceedings or a decision, then at 53(3) the Parliament would not have added the words "unless the Tribunal determines otherwise" and Parliament would not have added 53(4). f) SM Redfern then completes her comments at Paragraph 28 by writing: "Furthermore, s 53 is directed to the conduct and actions of the parties, not the Tribunal". However I contend there is nothing in NCAT Act Section 53 to support this contention by SM Redfern. g) Further, NCAT Act Section 53(3) is deliberate in the use of the passive voice ("If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings ..."). I contend that if Section 53 was intended to be directed towards "the conduct and actions of parties", then the logically the Section would have stated this. h) I believe that it is reasonable to accept that the Tribunal is fallible. Therefore it is reasonable to accept that the Tribunal and parties may at times fail to comply with "a provision of this Act of the procedural rules", as per Section 53(3), and thus it is reasonable to accept that this Section 53 also applies to errors by the Tribunal, especially given there is no express provision to the contrary.
Further, CBL submitted that the XDX case identified section 53 as a beneficial provision, but the Tribunal did not fully explore that issue and did not adopt a beneficial interpretation. He contends that the Tribunal is obligated to accept the widest possible interpretation which the language will allow. He said that Guideline 1 gives insight as to how the operation of section 53 ought to be understood. He also contends that it would be fundamentally unjust and unfair if the XDX Decision were to take precedence over the advice given in Guideline 1.
In regard to the approach to be taken in regard to beneficial provisions, CBL referred to views that I expressed in Page v Southern Cross University [2016] NSWCATAD 199 at paragraph [24]. I stated: 24. Further, as the Respondent noted, even where the legislation is beneficial there must be some ambiguity in the legislation before the Tribunal must concern itself with making a decision as to which interpretation to apply.
CBL submits that I erred at law in the above statement. He submits that I might have a conflict of interest in this matter as a result of the decision that I made in Page v Southern Cross University.
CBL submits that he has a right to make a strike out application regarding an error by the Tribunal, even when the option for internal appeal exists, and that the Tribunal should take that into account.
In regard to the question of whether the decisions remain unaffected because the alleged irregularity occurred after the decisions, CBL submits that it is difficult to see how the "procedural failure" could not affect the decisions because the decisions are part of the proceedings. If there is a failure which means that the proceedings are nullified, this must mean that the decisions which are part of those proceedings are also nullified.

The recusal requests and the Senior Member's response

CBL provided submissions in regard to the reasons that the Senior Member gave in response to the requests for recusal that he made at the Hearing. He stated that there were three requests for recusal for apprehended bias. He provided the following summary: a) The initial disqualification request was a written request, dated 29/3/16, and listing three reasons. At the Hearing on 4/4/16, I subsequently orally added a fourth reason. SM Lucy dealt with this at the beginning of the Hearing, and declined to disqualify herself. b) The second disqualification request was made well into the Hearing, and was an oral in nature. SM Lucy again declined to disqualify herself. c) The third disqualification request was made towards the conclusion of the Hearing, and was also oral in nature. SM Lucy again declined to disqualify herself.
He submits that the reasons that the Senior Member gave for not disqualifying herself cannot be taken as constituting reasons for her decision in response to requests (b) and (c). He argued: a) At the outset, there are numerous markers which indicate that, at pp. 1-5 [of the ex tempore reasons for decision on the recusal applications], SM Lucy was deliberately and systematically responding to the request (a), that is, the written request dated 29/3/16, with the additional fourth oral reason. There is no written indication to suggest that she was also writing reasons for her non-recusal decision regarding requests (b) and (c). b) Further, the deliberate and systematic way that SM approached the giving of the written reasons for the initial non-recusal decision would lead any reasonable person to believe that, if pp. 1-5 was also intended to constitute a written statement of reasons for the two further non-recusal decisions, then logically and reasonably SM Lucy would have indicated this. At no time did SM Lucy do so. c) ... There are numerous indicators on pp. 1-5 that SM Lucy is responding to disqualification request (a), and solely to disqualification request (a). I think we need to respect that SM knew what she was doing when she wrote this. d) Further, to suggest that SM Lucy somehow also responded to disqualification requests (b) and (c), that is, either unconsciously or inadvertently, must assume that the SM really did not know what she was doing. Apart from such a scenario being disrespectful of SM Lucy, I do not think any reasonable person would see this as being likely. e) Further, I believe it is relevant to point out that NCAT Act Section 62 gives very specific requirements as to what must constitute a statement of reasons. The giving of reasons is thus a very deliberate action. It is very difficult to suggest, in this context, that SM Lucy somehow accidentally or inadvertently, on pp. 1-5, provided a statement of reasons for non-recusal decisions (b) and (c).
In material that he attached to his application to the Tribunal in this matter CBL stated: The first oral application for disqualification due to apprehended bias made at the hearing on 4/4/16 came after SM Lucy refused to allow a question I put to the legal representative of the Respondent, namely, how many items of correspondence had been redacted by the Respondent. … The second oral application for disqualification due to apprehended bias made at the hearing on 4/4/16 came towards the end of the Hearing, before SM Lucy had declared the proceedings closed. I made unsworn assertions to the Tribunal at the Hearing that emails from me to the Respondent had been solicited - these assertions were not accepted by the Tribunal. SM Lucy argued that I had the opportunity to provide sworn testimony, and had not taken up this opportunity. My contrast, at the hearing, SM Lucy not merely accepted unsworn testimony from the Respondent on the issue of the reason for a directive to re-direct emails, but in fact invited and elicited such unsworn testimony. I believe that, in this difference of approaches to the two parties, there is a reasonable apprehension of bias on the part of SM Lucy.
CBL submits that the factual issue to be addressed is whether Senior Member Lucy did provide the necessary written statement of reasons for the two subsequent non-recusal decisions. He believes that any reasonable person would conclude that there is no evidence of this.

The Respondent's case

The Respondent submits that section 53 of the NCAT Act does not apply to these circumstances because the decisions cannot have been affected by a procedural defect of the Tribunal which occurred after the decisions were made.
Furthermore, the Respondent submits that if CBL considered that some or all of the decisions made by Senior Member Lucy on 4 April 2016 were not correct, it was open to him to appeal, or seek leave to appeal, those decisions. He has not done so. The Respondent contends that CBL did not require a statement of reasons to appeal or seek leave to appeal. The nature and extent of the duty to give reasons in the Tribunal is set out in Collins v Urban [2014] NSWCATAP 17 at paragraphs [48] - [57].
A failure to provide reasons, or to provide adequate reasons, can of itself be a ground of appeal. The Appeal Panel in BTH v The Public Guardian [2017] NSWCATAP 10 noted at paragraph [64]: 64. In a recent discussion of the principles, Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.
In Moussa Enterprises Pty Ltd v David Stanford and Kelly Stanford [2015] NSWCATAP 99, the Appeal Panel stated at paragraphs [16] - [18] 16. Without expressing exhaustively possible questions of law, the Appeal Panel in [Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69] referred at [13] to a failure to provide proper reasons as constituting an error of law. The Appeal Panel considered this, in relation to written reasons for decision, in Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30. At [14] the Appeal Panel concluded that a failure by a Tribunal to comply with s 62(3) of the Act will constitute a failure to provide proper reasons, and thus be an error of law for the purposes of s 80 of the Act. Section 62(3) sets out what a written statement of reasons must contain. 17. We note the observations of the Appeal Panel, in speaking generally about the requirement to give reasons, stated in Collins v Urban [2014] NSWCATAP 17 at [49] that: One reason why reasons are generally required, notwithstanding a provision such as s 62, is that if reasons for decision are neither sought nor prepared and an appeal or application for leave to appeal is lodged, the findings of fact and legal reasoning of the decision maker at first instance would not be available to the appellate body by way of written reasons. In many instances not having findings of fact and legal reasoning explicitly available may render effectively worthless any appeal right because the appellate body does not have a statement of the findings of fact, the relevant law and explanation of how the law was applied to the facts as found, by the decision maker at first instance. 18. The Appeal Panel in Prendergast concluded at [57] that the following propositions could be derived from the authorities concerning the nature and extent of the duty to give reasons: (1) notwithstanding that there have been many cases (some of which are collected in De Iacovo v Lacanale [1957] VicRp 78; (1957) VR 553, at pp 558-559) in which it has been held that it is the duty of a judge, magistrate or other relevant decision maker to state reasons, that does not mean that a decision maker must give his or her reasons in every case. There is no "inflexible rule of universal application" that reasons should be given for judicial decisions. Whilst it is no doubt right to describe the requirement to give reasons as "an incident of the judicial process", it is subject to the qualification that it is a normal but not a universal incident - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 667 per Gibbs CJ; (2) the content and detail of the reasons for decisions to be provided will vary according to the nature of the jurisdiction which the body in question is exercising and the particular matter the subject of the decision - Wainohu v New South Wales (2011) 243 CLR 181 at [56] per French CJ and Kiefel J; (3) the administration of justice in this regard requires a pragmatic and functional approach to the obligations imposed upon decision makers at first instance - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [46] per Basten JA; (4) not only is the obligation not universal in nature, but it is variable in its content and whilst transparency in decision-making is an important value, it is not cost free, and may involve separate parameters of quantity and quality - Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA.
The Respondent's position is that the view expressed in paragraph [28] of the XDX case is correct. However, even if it is not correct, the Respondent notes that Principal Member Redfern went on to state in paragraph 29 that in her view it would not be appropriate for the discretion under subsection 53(4) to be exercised in circumstances where the alternative remedies could be more properly utilised. The Respondent submitted that this is one of the circumstances where an appeal under Part 6 is the more appropriate procedure.
The Respondent submitted that as the decisions that CBL complains of are interlocutory decisions, and final decisions have been made in the proceedings, the appropriate process was for CBL to appeal the final decisions. At a minimum, it would have been necessary for CBL to prove that the Senior Member's failure to provide reasons amounted to an error of law. In this regard, the Respondent notes that the Senior Member had earlier provided written reasons for refusing to recuse herself and that CBL has not provided any evidence that he raised additional matters when making the further oral applications for the Senior Member to recuse herself.
Further, given that final decisions have been made, the Respondent submits that to be successful on an appeal CBL would need to show that the final decisions were incorrect.
In regard to the Guidelines, the Respondent submitted that it is trite law that a finding by the Tribunal will always have precedence over Guidelines issues by the administrative staff of the Tribunal.
The Respondent contends that the decisions in Dornan v Riordan and Craig v South Australia were judicial review matters and are more akin to the appeal process under Part 6 of the NCAT Act rather than an application to set aside for non-compliance with a provision of the NCAT Act or the procedural rules under section 53 of the NCAT Act. The Respondent submitted that, as such, those cases support the Respondent's submission that the appropriate process was for the applicant to seek leave to appeal under section 80(2) of the NCAT Act.
Further, the Respondent opposes any application that I recuse myself.
The Respondent submits that the application should be dismissed.

Discussion

I note CBL's submission in regard to my decision in Page v Southern Cross University. It is not clear whether CBL has actually suggested that I recuse myself. However, if that is his application I reject it and I will continue to decide this matter. I do not consider that any conflict arises as a result of my earlier decision. I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of this case simply because I have made a decision with which CBL disagrees.
The starting point in this matter is to consider the recusal applications and what reasons the Senior Member actually provided in regard to the recusal applications. It is my understanding that CBL has been given a copy of the transcript of the Senior Member's ex tempore decisions given on 4 April 2016. I also understand that he has been given a copy of the recording of the hearing.
CBL made a written application for the Senior Member to recuse herself by letter dated 29 March 2016. He raised three grounds for the application: Reasonable apprehension of pro-institutional bias Breach of the "audi alteram partem" rule Reasonable apprehension of pro-lawyer bias
At the hearing before me, CBL asserted that he made further oral applications for the Senior Member's disqualification at the hearing on 4 April 2016. In his written submissions dated 13 March 2017 CBL explained: I would like to clarify that there were in fact three requests made for SM Lucy to disqualify (recuse) herself for apprehended bias. I summarize these as follows: a) The initial disqualification request was a written request, dated 29/3/16, and listing three reasons. At the Hearing on 4/4/16, I subsequently orally added a fourth reason. SM Lucy dealt with this at the beginning of the Hearing, and declined to disqualify herself. b) The second disqualification request was made well into the Hearing, and was an oral in nature. SM Lucy again declined to disqualify herself. c) The third disqualification request was made towards the conclusion of the Hearing, and was also oral in nature. SM Lucy again declined to disqualify herself.
I will refer to the additional requests as 'request (b)' and 'request (c)'.
Request (b) appears to relate to the refusal to allow a question regarding how many items of correspondence had been redacted by the Respondent.
Request (c) appears to relate to the alleged difference of approach to the two parties in regard to the acceptance of unsworn testimony on the issue of the reason for a directive to re-direct emails.
CBL submitted that the Senior Member's written reasons cannot properly be taken as constituting reasons for her decision not to disqualify herself in response to requests (b) and (c).

Has CBL been given written reasons for the Senior Member's decision not to disqualify herself in response to the oral recusal applications?

I have been provided copies of the transcript of the Senior Member's ex tempore decisions in relation to the recusal applications and the substantive matter: CBL has referred to being given a copy of a recording of the proceedings on 4 April 2016 and in particular to segments located on Disc 3 and Disc 5 of the recording.
In the submissions attached to his application to the Tribunal in this matter CBL wrote: I note in passing that the NCAT Executive Officer indicated on 22/7/16 that SM Lucy "deals with" my oral disqualification requests at points in the recording of the hearing [at about counter marks 28:37 on Disc 3 and 18:14 on Disc 5] - it may well be the case that SM Lucy "dealt with" my oral disqualification requests, whatever that means, but I am still entitled to a written statement of reasons for her decision to reject these two oral disqualification requests.
It appears from this passage that CBL has conceded that it is possible that the Senior Member provided oral reasons for her decisions in response to requests (b) and (c) but that she did not provide written reasons for those decisions. I have not been given a copy of that recording of the hearing and I am therefore unable to consider those segments of the recording to which CBL has referred.
The relevant parts of the transcript of the ex tempore decisions in relation to the recusal applications set out the senior Member's discussion of the application and her reasons for refusing the application as follows: [CBL] has applied for me to recuse myself from the proceedings on the ground of apprehended bias … [CBL] has raised four grounds. The first is that he alleges that I am making the assumption that the respondent is telling the truth ... I do not accept that I have made an assumption that Southern Cross University is telling the truth. I am here to hear the matter today and to consider the evidence that is put before me. I have not made any assumptions as to what the facts of the case are yet. The second point raised by [CBL] is under the heading "Breach of the audi alteram partem rule." He says: "In particular on 30 September 2015 the University forwarded evidence to the Tribunal in the form of emails between certain University members and the University claimed that this proved its own assertions and disapproved my assertions." His contention is that those emails do not tell the full story and he should have been able to question those involved in the emails. Then he says: "I contend that the action of Dr Lucy in refusing to allow me to question those involved in the email exchange and through this to adduce necessary evidence to support my case that there is a reasonable apprehension of bias." Again I do not accept that that is the case, as far as I understand the submission it is do with not allowing [CBL] to summons certain individuals. My view is that that decision was made according to law and does not reveal any apprehension of bias. I do not think any proper grounds for that have been identified. The audi alteram partem rule allows [CBL] a reasonable opportunity to present his case and he has had that by directions giving him an opportunity to file evidence and submissions and to dispute the evidence and to rebut the submissions presented by the University. He will also have an opportunity today to make oral submissions. The third point [CBL] made is that there is a reasonable apprehension of pro lawyer bias on my part which he says is evidenced by my reliance on legalese and legalistic discourse. ... I accept [CBL]'s point that it is very important that the Tribunal explains to self-represented litigants what the procedure is if requested to so do so and sometimes even if not requested to do so. Also it is very important that the Tribunal does not effectively make the Tribunal inaccessible by using legalese. If it is the case that I used legal language that could not be understood by [CBL], I regret this and will endeavour to use more simple language in future. However, in a legal decision it is also often necessary to refer to legal principles in order to clearly make that decision and to identify the relevant legal principles. This means that use of some legal discourse may be inevitable. I do not accept that any use of legalistic discourse by me gave rise to an apprehension of bias. However, I encourage [CBL] to let me know if at any point he cannot understand what I am saying because I am using legal concepts or language he is unfamiliar with. [CBL] raised a fourth point which was that some of the principles discussed in Lonsdale v University of Sydney [2015] NSWCATAP 277 rested on the premise that an agency has to make all relevant material available to the Tribunal and that the Tribunal should be diligent in making sure that that occurs. His allegation as I understand it was that the Tribunal had not been diligent in ensuring that that occurred. ... There are two main reasons why I do not think that this gives rise to reasonable apprehension of bias. The first is that this particular aspect was only raised this morning and I am only just dealing with it now. It really relates to s 58 of the Administrative Decisions Review Act which places obligations on the agency to put forward all relevant material and also allows the Tribunal to require an agency to put forward material that the Tribunal considers relevant if the agency has failed to do so. No application has been made to me under that section until this morning and then even this morning it was not clear that an application was being made under that section. The other reason why I do not think that there is any apprehension of bias here is that I think it is really a legal question as to whether the decision of the Vice Chancellor that the applicant's emails be redirected is a matter on which evidence is necessary. As far as I can see, the relevant privacy principles do not require evidence as to why that decision was made by the Vice Chancellor, especially in circumstances where the University does not dispute that that decision was made. If, for example, it is alleged that forwarding the emails was a use of the information for a purpose other than the purpose for which that information was collected, then that could be determined without any references to what the Vice Chancellor's reasons or motives were in deciding that the emails were to be forwarded in the first place. For those reasons, I reject the application that I recuse myself and I will continue to hear the case.
As I have noted, I have not been given the transcript or the recording of that part of the hearing where the further oral recusal applications were made. I am therefore unable to form a view about the actual content of the applications or the basis on which those recusal applications were made. I am also unable to form a view about whether the Senior Member provided oral reasons for her decisions. However, I note that CBL appears to have accepted that it is possible that the Senior Member provided oral reasons for her decisions.
My understanding is that 'request (b)' concerned the Senior Member's disallowing of questions to Ms Atkinson regarding the number of items of redacted correspondence. As is clear from the transcript, the alleged breach of the audi alteram partem rule concerned the refusal to allow CBL to question persons involved in an email exchange. The Senior Member provided oral reasons for her decision in regard to that issue. It is clear from the transcript that the Senior Member expressed the view that "the relevant privacy principles do not require evidence as to why that decision [that CBL's emails be redirected] was made by the Vice Chancellor, especially in circumstances where the University does not dispute that that decision was made.
This explanation does not specifically address the issue of the refusal to allow a question regarding how many items of correspondence had been redacted by the Respondent. However, as the Senior Member expressed the view that the relevant privacy principles do not require evidence as to why the decision that CBL's emails be redirected was made by the Vice Chancellor, it is probable that the same reason would be given in regard to how many items of correspondence had been redacted. As the Senior Member noted, the Respondent does not dispute the conduct. Nevertheless, I accept CBL's argument that this is no more than speculation in regard to the reason for the decision.
I am unable to comment in regard to whether or not the issue was addressed in that part of the hearing that is not recorded in the transcript that I have been given.
Similarly, it is probable that the Senior Member would have given the same reason in regard to the acceptance of unsworn testimony on the issue of the reason for a directive to re-direct emails. However, even if that were the case, it does not respond to the alleged difference of approach to the two parties in regard to the issue. Again, I accept CBL's argument that this is no more than speculation in regard to the reason for the decision.
I am unable to comment in regard to whether or not the issue was addressed in that part of the hearing that is not recorded in the transcript that I have been given. In any event, it appears that CBL was not provided with a typed copy of the transcript of those parts of the hearing that are not recorded in the transcript that I have been given.
It is common ground that the provision of reasons is provided for by subsection 62(2) of the NCAT Act. I am satisfied that CBL has not been provided with written reasons for the Senior Member's decisions on requests (b) and (c).

The subsection 53(4) application

It is common ground that subsection 53(4) of the NCAT Act provides that in dealing with an 'irregularity', the Tribunal may set aside a decision in the proceedings.
However it is clear that this provision is limited in its application. Section 53(3) states: (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
To be regarded as an 'irregularity' for the purposes of subsection 53(4), the non-compliance must be "in relation to the commencement or conduct of proceedings".
It is not in dispute that the obligation to provide written reasons on request only arises after the Tribunal receives a request a written statement of reasons for its decision.
The question arises as to whether the failure to meet a request for a written statement of reasons for a decision is non-compliance "in relation to the commencement or conduct of proceedings".
In my view, the failure to provide written reasons is clearly not a failure to comply with a provision of the NCAT Act in relation to the commencement of proceedings. Nor will it be a failure to comply with a provision of the NCAT Act in relation to the conduct of proceedings if the conduct of proceedings had been completed.
At the time of the request for written reasons for the decisions the Tribunal had already made final decisions in the proceedings. In my view, once the Tribunal has made a final decision in the proceedings, the proceedings are no longer at the 'conduct of proceedings' stage. They have progressed from the 'conduct of proceedings' stage to the 'determination of proceedings' stage.
This view is consistent with the structure of the NCAT Act. Division 2 of Part 4 of the NCAT Act deals with commencement of proceedings. Division 4 of Part 4 of the NCAT Act deals with conduct of proceedings. Section 53 falls within Division 4 of part 4. The requirement to give written reasons falls within Division 5 of part 4 of the NCAT Act which is headed "Determination of issues and proceedings".
In my view the issues relating to the conduct of proceedings are those that arise prior to the determination stage of the proceedings. The failure to provide written reasons is an issue that arose after the conduct of proceedings stage had been completed.
It follows that subsection 53(4) does not apply to the circumstances of this matter. CBL has not established that there was any non-compliance with any provision of the NCAT Act "in relation to the commencement or conduct of proceedings".
If I am wrong on this and my interpretation of these provisions, it is clear that subsection 53(4) gives the Tribunal discretion to set aside, wholly or partly, proceedings or a decision in the proceedings. CBL has not asserted any errors in the decisions made by Senior Member Lucy on 4 April 2016 nor has he identified any other issues in regard to those decisions.
As I understand it, it is not alleged that Senior Member Lucy failed to provide reasons for her decisions. Rather, the issue is that she failed to provide written reasons. In circumstances where no other issues have been raised in regard to the decisions there is no utility in setting aside any decision in the proceedings. I do not regard the circumstances of this matter as warranting the setting aside of the decision.
I therefore reject CBL's application to set aside the decisions of the Tribunal pursuant to subsection 53(4) of the NCAT Act.

Order CBL's application to set aside the decisions of the Tribunal pursuant to subsection 53(4) of the Civil and Administrative Tribunal Act 2013 is dismissed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2017

Civil and Administrative Tribunal Regulation 2013(NSW)

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)