Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra

Chen v Premier Motor Services Pty Ltd t/as Premier Illawarra - [2018] NSWCATAP 142 - NSWCATAP 2018 case summary — Zoe

[3]

Background

In order to understand the Tribunal's decision and the appellant's grounds of appeal it is necessary to set out briefly the background factual circumstances. The appellant has been a regular user of the respondent's free shuttle bus service over a number of years. His complaints about the respondent date back to 2014, when he first became concerned that some drivers were not stopping the bus directly adjacent to where he was standing but would pull up either a few metres short or ahead of him. The appellant referred to this as "overshooting" or "undershooting".
The appellant made complaints to the respondent about the alleged practice by some drivers of overshooting or undershooting. He believed that drivers engaged in this practice with respect to him because he was Chinese. It appears that in July 2016 the appellant was told by the manager of the respondent bus company, Mr Sunny Brailey, that he could photograph the identity cards of drivers displayed in the bus in order to identify drivers whom the appellant claimed were engaging in this practice. He was also told that he could photograph the number plate of the bus in question.
The formal complaint, which was referred to the Tribunal by the Acting President of the Board and by which the proceedings in the Tribunal were instituted, covered the discrete period from 28 July 2016 to 25 November 2016. The conduct the subject of the complaint was that, during this period, two bus drivers, Mr Wheat and Ms Ambrosi, tried to prevent the appellant from photographing their identity cards as he boarded buses they were driving. The appellant then made a series of complaints about the drivers' actions to managers employed by the respondent; some of whom described the complaints as vexatious and raised the appellant's behaviour with the police. The appellant's complaint before the Tribunal did not concern the overshooting and undershooting, as such, but rather the drivers' reactions to his attempts to photograph their identity cards, and the way in which his subsequent complaints to the bus company were handled.
Before the Tribunal at first instance, the appellant argued that the response he received from the respondent's drivers and managers amounted to discrimination on the ground of his race either by refusing to provide him with services or in the terms on which he was provided with services, which is rendered unlawful by s 19 of the AD Act. The Tribunal understood the appellant to be relying on "direct" race discrimination, as described in s 7(1)(a) of the AD Act, together with the respondent's vicarious liability for the acts of its employees under s 53. See the Tribunal's reasons for decision in Chen at [11] and [12].
In addition, the Tribunal noted in its reasons for decision, at [12] to [15], that: 1. to the extent that s 52 of the AD Act was relied upon, he had not established that the respondent, or any other person, had aided and abetted any unlawful discrimination; and 2. to the extent that the appellant sought to rely on victimisation under s 50 of the AD Act, such an allegation was not part of the complaint referred to the Tribunal by the Acting President of the Board; no application was made, before the hearing, to amend the complaint to include such an allegation; and, in any event, since the respondent was not put on notice of such an allegation, and had not had a reasonable opportunity to respond, it would not be appropriate to allow a complaint of victimisation to be pursued.
The hearing at first instance took place over two days in September 2017. There was a considerable amount of documentary material before the Tribunal and a number of witnesses gave evidence. The appellant represented himself and was given an opportunity to question the witnesses called by the respondent. On 27 November 2017, the Tribunal delivered its decision, dismissing the appellant's complaint. Written reasons for decision were also provided at this time.

[4]

The Appeal and the Reconstitution

The appellant lodged his notice of appeal on 29 November 2017 challenging the Tribunal's decision of 27 November 2017. This was within the 28 day period established by r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW). The decision made by the Tribunal below was a decision made in proceedings for a general decision, within s 32(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and thus was an internally appealable decision for the purposes of ss 32 and 80 of that Act. As the decision was a final decision, the appellant was entitled to appeal as of right on any question of law and by leave on any other grounds, s 80(2)(b) of the NCAT Act.
The appeal was heard on 1 March 2018. The appellant provided a considerable amount of documentary material before and at the hearing of the appeal. Ultimately, he combined the majority of the documents relied upon into one large document, which he labelled the "Master File". It was this document to which he primarily referred during the hearing of the appeal, and the document to which we have had primary regard in considering his appeal. The Master File was supplemented by further material, contained in other folders. During the hearing, the appellant made some reference to elements of this further material.
After the hearing of the appeal, the Deputy President who presided at the hearing became unavailable. The parties were informed, by correspondence dated 21 March 2018, of the Deputy President's unavailability and of the President's proposal to reconstitute the Tribunal, as permitted by s 52 of the NCAT Act. The parties were afforded an opportunity to make submissions about the proposed replacement but no submissions were received. On 9 April 2018, the President reconstituted the Appeal Panel in the manner previously proposed. Accordingly, we have determined this appeal, having regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted, as required by s 52(3).

[5]

Grounds of appeal

The appellant's grounds of appeal were set out in a document attached to the notice of appeal, although this document also included material in the nature of submissions. The grounds were formulated as follows: "1) Question of Law The grounds for appeal are on the Questions of Law pertaining to: ● Failing to give the appellant an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice) ● Applying incomplete statutory tests or otherwise failing to comply with the terms of the applicable legislation ● Failing to take into account a relevant consideration 2) New Evidence Second, the grounds for appeal are on the New Evidence pertaining to: ● The testimonies of witnesses from Premier Illawarra during the hearing for NCAT Case Number: 2017/00087880. ● The Premier Illawarra witnesses gave multiple false testimonies during the hearing and in their written statements. ● Their false testimonies were greatly aided and abetted by the deletion of all surveillance videos at Premier Illawarra. ● Their false testimonies were also greatly aided and abetted the actions of Sunny Brailey, to which he testified in the witness box during the hearing."
In his notice of appeal, the appellant sought leave to appeal, presumably, in relation to the "new evidence" ground. In his written and oral submissions the appellant raised a number of additional applications and other matters.
The appellant did not challenge the Tribunal's characterisation of his claim as one involving direct discrimination, within s 7(1)(a) of the AD Act. Nor did he challenge the Tribunal's conclusion that what was in issue was a complaint concerning the provision of services (bus services and complaint handling services) on certain terms under s 19(b) of the AD Act, rather than a denial of service that would fall within s 19(a).
We shall deal with the grounds of appeal under the following headings: 1. Denial of procedural fairness; 2. Failure to apply correct principles of law; 3. Failure to take into account a relevant consideration; and 4. Other grounds and applications.

[8]

Evidence of Ms Ambrosi

The appellant put a similar argument in relation to evidence given by another bus driver, Ms Ambrosi, during the Tribunal hearing.
At MF29, the appellant contended that Ms Ambrosi changed her evidence during the course of the hearing, in response to questioning by him. For example, she went from stating that the appellant "continually" or "on many occasions" photographed her or her identity card, to saying that she recalled it occurring just twice. It was then submitted by the appellant that: "The false testimony about me continually photographing Ms. Ambrosi or her ID was a great obstruction to the line of questioning for her in the witness box. This results in: ● Failing to give the appellant an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice)"
At MF42 and MF43, the appellant referred to another part of Ms Ambrosi's evidence where she had initially stated that she was afraid he would take photographs of her identity card, but then later stated that it wasn't about the photography, rather it was about feeling harassed when the appellant was on the bus. The submission was that her "false testimony" pertained "to a material and crucial element of her defence" and "greatly obstructed her line of questioning in the witness box". Once again this was said to amount to failing to give the appellant the opportunity to be heard.
The appellant identified further instances of what he contended were Ms Ambrosi's changing her evidence or giving false evidence, including but not limited to: 1. changes in her evidence as to what she meant by the term "harassment", at MF50 and MF54; 2. allegedly false evidence as to whether Ms Ambrosi allowed the appellant to board the bus, at MF56.
In all these types of instances, the essential contention was that, as a result of the witness's evidence, the appellant was obstructed in his line of questioning and this involved a failure to give him an opportunity to be heard and thus a failure to afford him procedural fairness.

[10]

Disallowance of questions

At MF215 to MF240, the appellant submitted in effect that the Tribunal made a legal error and denied him procedural fairness when it disallowed a number of questions he asked of various witnesses during cross-examination. The instances given by the appellant were: 1. disallowing the question "Are you aware of the concept of … called discriminating against a person due to their past record?" on the basis that such discrimination is not covered by the AD Act, the question raised a question of law, and the witness was not a lawyer - MF218 and MF221; 2. disallowing the question "Why would you be afraid of a person taking your ID, when you see with your own eyes that this person boarded your bus multiple times and did not take a picture of your ID?" on the basis that the witness had already given her evidence as to what she thought, and the appellant could make submissions as to whether or not that was rational - MF227 to MF231; 3. disallowing the question "More than two. Would you say more than two. Which is to say I have a less then 50% of the time tried to take a picture of your ID. Right?" on the basis that the witness had already said it was only two times, and the appellant had been on the bus more than two times, and the Tribunal did not think that the proportion was very important - MF233 and MF235; 4. disallowing the question "Okay. Yeah. They, they once told you that they reported me to the police, and you regularly advise your employer that you're being harassed by this person. In your advisement of them, you never enquired about the police report that they told you about to assure you?" on the basis that it was not relevant to the appellant's complaint - MF237 to 240.
The appellant also raised instances of the Tribunal "cutting short Mr Brailey's testimony in the Witness Box", for example at MF161 where the appellant contended: "the Tribunal judge may not have realized that the cases for victimisation and aiding and abetting had become relevant to this case. Further cross-examination of Mr. Brailey would have continued to develop the cases for victimisation and aiding and abetting to be entered into consideration for this case."
A similar point was raised at MF163 to MF164.

[12]

Procedural fairness - the relevant law

Section 38(2) of the NCAT Act expressly establishes that the Tribunal must observe the rules of natural justice. That subsection provides that the Tribunal "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." The rules of natural justice and procedural fairness are closely related, even if not exactly the same. Procedural fairness is effected by impartiality and the natural justice hearing rule: South Australia v Totani (2010) 242 CLR 1 at [62]; [2010] HCA 39.
The hearing rule is reinforced in the Tribunal's case by s 38(5) of the NCAT Act, which relevantly provides: "The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
The hearing rule, as s 38(5)(c) indicates, is not, however, absolute. The Tribunal is only required to take "reasonably practicable" measures to ensure that a party has a "reasonable opportunity" to be heard. A similar point was made in Brennan v New South Wales Land and Housing Corporation [2011] NSWCA 298; (2011) 83 NSWLR 23 at [63], where Giles JA said that: "...in principle, the requirements of procedural fairness are identified as a matter of law depending upon the institutional setting in which decision-making is to operate, the relevant statutory scheme, the subject matter of the decision and, as part of that analysis, the seriousness of the potential consequences of an adverse decision."
What constitutes a "reasonable opportunity" to be heard will, of course, vary from case to case. In part that is because, as Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]: "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."
The instances relied upon by the appellant must be considered in the light of the hearing as a whole, the somewhat informal nature of the processes under the AD Act and whether the appellant was in a practical sense denied the opportunity to put forward his case.

[13]

Procedural fairness - consideration

In circumstances where there has been a hearing that extended over two days, where the appellant was allowed considerable time to cross examine the respondent's witnesses and had the opportunity to make submissions concerning the witnesses' evidence and the law, it is not readily apparent how it could be said that the appellant was denied a reasonable opportunity to be heard or was not afforded procedural fairness so that he suffered practical injustice.
The first type of denial of procedural fairness identified by the appellant was said to arise from his being obstructed in his line of questioning of a witness because the witness gave evidence that the appellant believed was false. We do not accept that a denial of procedural fairness arises in such a situation. There is a fundamental problem with this aspect of the appellant's appeal. It is the Tribunal, not a witness, which is obliged to apply the rules of natural justice and accord procedural fairness to the parties. The appellant did not submit, in this regard, that the Tribunal obstructed the appellant's line of questioning or did anything else that prevented the appellant from asking the questions he wished to ask or otherwise putting his case and testing the other side's case. In these circumstances, the appellant has not established a denial of procedural fairness in any of the situations where a witness gave allegedly false testimony, referred to above, or any of the similar situations set out in his submissions.
The second basis on which the appellant submitted that he had been denied procedural fairness was that the Tribunal disallowed a number of his questions in cross examination.
The appellant was given considerable latitude to question the respondent's witnesses and it is apparent that the Tribunal was mindful that the appellant was not legally qualified and was representing himself. While the Tribunal is not bound by the rules of evidence it must, nevertheless, base its decision on logically probative evidence: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685. The Appeal Panel in Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 adopted what was said by Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256 that: "[n]o tribunal can…resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'."
In our view, in disallowing certain questions the appellant wished to ask of the respondent's witnesses, the Tribunal did no more than prevent the appellant from asking irrelevant, confusing or repetitive questions, or questions which fell outside the knowledge of the particular witness. There was nothing that indicated to us that the Tribunal acted in anything other than an even handed manner to ensure that the lines of questioning pursued by the appellant in cross-examination were capable of producing logically probative evidence to assist the Tribunal in making its decision and did not disadvantage either party.
Even though the rules of evidence did not apply, the Tribunal was entitled to disallow questions, especially where they were unlikely to elicit evidence which, if accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings (adapting the language of s 55 of the Evidence Act 1995 (NSW)). The Tribunal did not truncate the appellant's cross examination to such an extent that he was, in substance, denied the ability to test the evidence led against him. We do not believe that the Tribunal went beyond what it was entitled to do when it disallowed the appellant's questions identified above.
Finally, if the complaint of victimisation was not properly before the Tribunal and the aiding and abetting case sought to be put by the appellant was not legally available, then any denial of procedural fairness in not permitting the appellant to explore these issues in cross-examination would not produce any practical injustice. We shall consider below whether there was any error of law by the Tribunal in refusing to amend the appellant's complaint to include victimisation and in dismissing the aiding and abetting allegations as being defective in law.
For these reasons, we do not accept that the appellant was denied procedural fairness on the bases put forward. Accordingly, we dismiss the appeal in so far as it is based on the ground of denial of procedural fairness.

[15]

Victimisation

In its reasons at [14], the Tribunal below observed that the appellant claimed to have been "victimised", within s 50 of the AD Act. That section makes it unlawful for a person to "subject another person to any detriment in any circumstances" on the ground, among others, that the person has "alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of the [AD Act]", s 50(1)(c) of the AD Act. At [15], it was noted, however, that the appellant had not expressly relied upon s 50 when he complained to the Board and no complaint of victimisation was referred to the Tribunal by the Acting President of the Board.
The Tribunal's reasons at [15] also note that, during the course of preparation for the hearing, the appellant had been encouraged to obtain legal advice. The Tribunal at first instance then continued at [15] as follows: "At no stage before the hearing did he apply for his complaint to be amended to include a complaint of victimisation: Anti-Discrimination Act, s 103. He mentioned victimisation again at the hearing but Premier Illawarra was not on notice of any application to amend the complaint and would not have had a reasonable opportunity to respond: NCAT Act, s 38(2). The Tribunal must also be guided by the principle of facilitating the "just, quick and cheap resolution of the real issues in the proceedings": NCAT Act, s 36. Accordingly we find that Mr Chen has not made a complaint of victimisation."
The appellant effectively submitted that the Tribunal fell into error by failing to allow an amendment, under s 103 of the AD Act, during the hearing to permit him to include a complaint of victimisation. He submitted, at MF105 and MF106, that: "The hearing is a process of discovery. It may be possible that testimonies at the hearing unveil revelations that make for the need to activate 103 and enter amendments to the complaint." and "103 of the [AD Act] allows for the possibility that additional complaints could become apparent during the proceedings and amendments to the original complaint can be made during the proceedings. Fairness can next be ensured by implementing conditions upon the amendments."
The additional complaints that "arose during the hearing" were identified, at MF106 to MF107, as victimisation under s 50 and as aiding and abetting within s 52 of the AD Act.
The respondent submitted that, as the appellant was given an earlier opportunity to amend his application to include a claim of victimisation, yet did not do so, accordingly it could not be said that the Tribunal fell into error by failing to allow an amendment or to consider his victimisation claim.
Section 103 provides: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit."
Under s 103 the Tribunal has a discretion whether or not to allow an amendment. There are no explicit considerations which the Tribunal must take into account when exercising this discretion but such a discretion must be exercised judicially having regard to the subject matter, scope and purpose of the statute: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [90]; [2013] HCA 18.
Although there was no formal application to amend the complaint, it appears that the appellant's contention on the appeal is that the Tribunal should have amended the complaint when he raised the issue of victimisation at the hearing. As we understand it, it is said that the Tribunal erred in law by not amending the complaint.
As we have noted above, the Tribunal below referred to s 103 in its reasons for decision at [15]. There is no reason to think that the Tribunal was unaware of its specific provisions, nor that it did not have regard to them. The Tribunal in effect declined to amend the appellant's complaint to include victimisation or to treat it as if it had been amended. We take this to be the import of the Tribunal's statement, at the end of [15], that "we find that Mr Chen has not made a complaint of victimisation". We are of this view because the statement follows the Tribunal's reasoning to the effect that it would not be appropriate to allow an amendment because: 1. the appellant did not expressly rely on victimisation within s 50 in his complaint to the Board; 2. no complaint of victimisation was referred to the Tribunal; 3. the appellant was encouraged to seek legal advice, presumably prior to the hearing; 4. the appellant did not apply to amend his complaint to include victimisation before the hearing; 5. although the appellant mentioned victimisation at the hearing, the respondent was not on notice of any application to amend the complaint; 6. consequently, if an amendment were allowed at the hearing, the respondent would not have had a reasonable opportunity to respond; and 7. the just, quick and cheap resolution of the real issues in the proceedings did not favour allowing an amendment.
Even if it was only at the hearing that "revelations" were "unveiled" to the appellant, it does not follow that the appeal should be upheld because the Tribunal fell into legal error in this case by not allowing an amendment.
A decision whether to permit an amendment under s 103 of the AD Act is discretionary. In accordance with the principle stated in House v The King (1936) 55 CLR 499 at 505, it is necessary for an appellant challenging such a decision on appeal to establish that the decision maker: 1. made an error of legal principle; 2. made a material error of fact; 3. took into account some irrelevant consideration; 4. failed to take into account, or to give sufficient weight to, some relevant matter; or 5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
We find no error of legal principle in the Tribunal's reasoning, summarised above, or its approach in relation to amending the complaint to include a claim by the appellant of victimisation. No error of fact or other relevant failure was identified by the appellant nor have we been able to discern any. The result was not so unreasonable that some form of error is suggested even if not explicit in the Tribunal's reasoning.
Accordingly, we do not find that there is any basis for upholding the appeal in relation to the refusal to amend the complaint, or to treat the complaint as amended, so as to include a complaint of victimisation.

[16]

Aiding and abetting

The appellant effectively sought to submit that the Tribunal erred in law in dismissing his complaint concerning "aiding and abetting". In its reasons, the Tribunal stated that they understood the appellant's reference to "aiding and abetting" to be a reference to s 52 of the AD Act. That provision makes it unlawful for "a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of [the AD Act]".
At MF155 to MF157, MF161, MF164 and MF203, among other places, the appellant submitted, as we understand it, that his case was that Mr Brailey took actions which induced, aided or permitted the drivers to engage in the conduct of which the appellant complained. In doing so, Mr Brailey was acting "as an individual" (MF164) or, having done these things, the respondent should "renounce" him and he should not be an employee of the company (MF203). In these circumstances, the appellant contended that he should be allowed to pursue his case of aiding and abetting against Mr Brailey.
The respondent submitted that, at the hearing, the appellant did not identify a relevant third party whom the respondent aided and abetted. Thus, any claim concerning aiding and abetting could not succeed.
There are numerous difficulties that the appellant faces in relation to his attempt to base a case against Mr Brailey on s 52 of the AD Act. One is that Mr Brailey was not a party to the proceedings. Consequently, no order could be made against him. On this appeal, it is too late to seek to join him for that purpose.
Further, the appellant brought his complaint against the respondent, which is the corporation that employed the bus drivers and their managers including Mr Brailey. In doing so, the appellant relied upon s 53(1) of the AD Act which provides: "(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act."
The Tribunal below held at [13] of its reasons for decision: "In the circumstances of this case, for Mr Chen to establish a breach of the "aiding and abetting" provision in s 52, he must first prove that Premier Illawarra, through one of its employees, has breached the Anti-Discrimination Act. He must then prove that a third party (other than Premier Illawarra or one of its employees) caused, instructed aided or permitted that breach. Mr Chen did not identify a third party who could have aided or permitted Premier Illawarra or one of its employees to do an unlawful act. As there is no allegation against a third party, and no third party has been joined as a party to these proceedings, it follows that to the extent Mr Chen relies on a breach of s 52, the complaint is not substantiated and is dismissed.. "
The appellant was relying on the conduct of the respondents' employees, including Mr Brailey, to establish that the respondent had unlawfully discriminated against him. In these circumstances, we think the Tribunal was correct to hold that it was necessary for the appellant to establish that someone other than the employees had caused, instructed, induced, aided or permitted the conduct, before a finding of relevant aiding or abetting could be made in the present matter.
Moreover, the Tribunal did not find that the respondent had unlawfully discriminated against the appellant. This was based on the finding that whatever conduct the respondent engaged in by its employees, they would not have treated a person of another race differently in the same or not materially different circumstances. Thus, it would not have been open in any event to conclude that the conduct of Mr Brailey, identified by the appellant, amounted to aiding and abetting any unlawful discrimination by the respondent on the ground of race.
For these reasons, we do not accept that the Tribunal's decision to dismiss the claim that Mr Brailey aided and abetted any unlawful discrimination by the respondent was affected by legal error.

[17]

Other errors of law

At various points in the Master File the appellant identified other alleged errors of law. For example, without attempting to be exhaustive: 1. At MF241, the appellant contended that the Tribunal had "made a monumental error in allowing the absurd definitions of harassment/ intimidation/ threat by [the respondent] to stand without being challenged or examined". As we understand it, these "definitions" related to some of the explanations given by one or more of the witnesses that they felt harassed or intimidated by the appellant, and that this, as opposed to the appellant's race, explained why they acted as they did in relation to him. The error alleged to have been made by the Tribunal was in attempting to explain to the appellant its understanding of what the witnesses intended to convey. At MF243, this was said to give rise to a ground of appeal as follows: "The ground of appeal for this monumental error by the Tribunal Judge is: Question of Law: Setting a Monumentally Incorrect Precedent that Greatly Empowers Wrongdoing and Retaliation Against Investigation." 1. At MF243 to MF246, the appellant submitted that the Tribunal made an error in relation to the definition of "presence", as used by the witness, Ms Ambrosi, when she stated that "simply [the appellant's] presence on the bus due to past incidents harasses her". The appellant contended that his presence included, among other things, his race. At the hearing, the appellant characterised the "presence argument" as "the most important question of law for this case." The Tribunal, as recorded in the transcript extract at MF244, attempted to explain in effect that its understanding of Ms Ambrosi's evidence about the appellant's presence related to his behaviour and previous conduct, as distinct from his race or other physical traits. At MF245 to MF246, it was submitted that: "[The Tribunal's] incorrect definition of the word presence resulted in: ● Failing to give the appellant an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice) ● Applying incomplete statutory tests or otherwise failing to comply with the terms of the applicable legislation ● Failing to take into account a relevant consideration."
These and similar submissions do not, in our view, establish that there has been any error of law, or any other error for that matter, on the part of the Tribunal. These submissions concern the evidence of the witnesses and how their evidence was to be understood. At all times the Tribunal, in accordance with what is required to establish unlawful racial discrimination under the AD Act, was at pains to stress that it had to be satisfied that the treatment the appellant was afforded was less favourable than the treatment that would have been afforded to a person of a different race in the same or not materially different circumstances. In the end, the Tribunal was not so satisfied, see Chen at [63].
In doing this, the Tribunal can be seen as attempting to assist the appellant, in an entirely proper way, by explaining what the Tribunal understood the witnesses to be saying, and what the appellant needed to prove. The appellant was free to make submissions as to why the Tribunal's understanding was wrong. The Tribunal was not applying any legal principles. Any relevant conclusions that the Tribunal reached, concerning how the drivers felt as a result of the appellant's presence, whether there was harassment, and whether their reactions were based upon the appellant's race, were conclusions of fact, not law. Nothing the appellant submitted on appeal demonstrated that the Tribunal's factual findings were not open on the evidence.
We should, in addition, make some more specific comments concerning the appellant's "presence argument". As we understand that argument (see for example in his Addendum to Master File at MF465ff), it is to the effect that: 1. to the extent that Ms Ambrosi and Mr Wheat sought to explain their conduct towards the appellant on the basis that they were intimidated or harassed by his presence; 2. this amounted to an admission that their conduct was the result of his race because his race was an inseparable part of his being physically present.
Even if it were accepted that a person's race is part of their being physically present, the "presence argument" does not establish that the respondent, by its employees, unlawfully discriminated against the appellant on the ground of race in the present case. This is because in order for there to be a conclusion of unlawful direct discrimination on the ground of race there must have been conduct that fell within s 7(1)(a) of the AD Act. That provision is relevantly in the following terms: "(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race … treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race …".
Thus, to be successful, the appellant had to show that the respondent (by its employees) on the ground of the appellant's race treated the appellant less favourably than, in the same circumstances or in circumstances which are not materially different, the respondent (by its employees) treated or would have treated a person of a difference race.
It follows that, even if the respondent's employees treated the appellant in a particular way on the ground of his race, this was not sufficient to establish unlawful race discrimination. It was also necessary for the appellant to show that the respondent (by its employees) treated the appellant less favourably than it would have treated a person not of the appellant's race in the same or not materially difference circumstances. This the appellant failed to do, as the Tribunal below made clear in its findings at Chen at [63]: "we are not satisfied that, in the same or similar circumstances, any of the people dealing with Mr Chen's complaints would have treated a person who was not Chinese, any differently."
For these reasons, we do not accept that the "presence argument" demonstrates that the Tribunal erred in law in dismissing the appellant's complaint.
The appellant appears to accept this reasoning at MF555 when he says: "The way to test for racial discrimination substitutes the aggrieved person with persons of a different race and sees if the treatment of the substituted persons would change".
Nonetheless, he then goes on to submit that there are two other ways to prove racial discrimination: 1. "A person simply confesses to racial discrimination. … In this case, as [Ms] Ambrosi's credibility was crumbling in the witness box, she resorted to the presence argument as a last ditch effort. I have argued that when she did that, she confessed" - MF555; 2. "A person bears false testimony during the hearing and thereby by virtue of falsus in uno, falsus in omnibus, defaults on all of their testimonies. Then, the claims against the person meets with no defense" - MF556.
Contrary to those submissions, these other ways to prove unlawful racial discrimination, in breach of s 19(1)(b) based on s 7(1)(a) of the AD Act, were not applicable in the present case.
As to the confession submission, even if the "presence argument" were accepted as being correct, it nevertheless does not address how the respondent's employees, in the same circumstances or in circumstances which were not materially different, would have treated a person of a difference race. Such differential treatment because of race is a necessary element in establishing unlawful discrimination under s 19(1)(b) based on s 7(1)(a). Consequently, even if the "presence argument" were correct and did mean that there was a "confession" that the appellant had been treated as he was on the ground of race, it would not amount to a confession of racial discrimination under ss 19(1)(b) and 7(1)(a).
As to the false testimony submission, it does not assist the appellant in this case. The proposition, false in one thing, false in everything, expressed by the appellant as 'falsus in uno, falsus in omnibus', is not a principle of law. Nor does it appear to be an observation of human nature that is universally correct. The Tribunal did not fall into error by not applying this proposition to its consideration of the witnesses and their evidence in the present case. In the end, the Tribunal had to be satisfied on all the evidence that the respondent, by its employees, would have treated, in the same or not materially different circumstances, a person not of the appellant's race differently from how they treated the appellant. The Tribunal was not so satisfied. There was no error of law as the appellant contended in reaching that conclusion.

[19]

Failure to take into account a relevant consideration

On numerous occasions, the appellant contended that the Tribunal had failed to take into account a relevant consideration. These occasions included, without attempting to be exhaustive, typical examples as follows: 1. At MF160, MF162, MF164, MF190 and MF254, concerning the appellant's arguments relating to whether a case of victimisation or aiding and abetting by Mr Brailey had been established or should have been allowed to be pursued. MF160 provides a typical example of the way in which the appellant put his submission as to failure to take into account a relevant consideration. There it was said: "The Tribunal Judge in cutting short the cross-examination of Mr. Brailey's call to the police shows she was only considers the facts that were relevant to claims of racial discrimination and had not discerned that further cross-examination of Mr. Brailey would bring forth information pertinent to the cases for victimisation and aiding and abetting, as well as, to the credibility of Mr. Brailey and his mental competence to serve as a witness. The Tribunal Judge did not see the relevance of Mr. Brailey's call to the police in this case. That is a critical error because Mr. Brailey's testimony is a critical turning point in this case. This constitutes failure to take into account a relevant consideration, question of law." 1. At MF190 and MF254, concerning whether an amendment should have been allowed so that the appellant could pursue a claim of victimisation. 2. At MF221, MF231, MF235 and MF240, concerning Ms Ambrosi's evidence about her feeling harassed by the appellant's presence because of past incidents and the appellant's contentions as to the irrationality of her fear. 3. At MF241, concerning the Tribunal's not considering Mr Brailey's evidence through the lens of victimisation and aiding and abetting, and cutting it short. The appellant submitted: "The Tribunal Judge not considering Sunny Brailey's testimony to be relevant resulted in: ● Failing to give the appellant an opportunity to be heard (otherwise known as a denial of procedural fairness, or of natural justice) ● Applying incomplete statutory tests or otherwise failing to comply with the terms of the applicable legislation ● Failing to take into account a relevant consideration as she made rulings during Sunny Brailey's testimony that hindered the cases for victimisation and aiding and abetting and the examining the credibility of Sunny Brailey who was giving a totally nonsensical testimony." 1. This passage is a typical example of what we perceive to be a formulaic approach, found throughout the appellant's submissions, which does not in fact disclose a failure to take into account a consideration required by law to be considered. 2. At MF246, concerning the Tribunal's understanding of a witness's use of the word "presence". 3. At MF251, concerning the Tribunal's assessment of credibility of the appellant and of the respondent's witnesses. 4. At MF255, MF256 and MF257, concerning whether the Tribunal was biased.
On numerous occasions, the submission that the Tribunal had failed to take into account a relevant consideration was made along with the submission that the Tribunal had denied the appellant procedural fairness and had failed to apply the law correctly. As we noted above, it appeared to us that this was a formulaic approach adopted by the appellant, rather than an attempt to identify a specific failure by the Tribunal to consider a factor that it was bound as a matter of law to take into account, as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.
We do not think that any of the circumstances described by the appellant as involving a "failure to take into account a relevant consideration" amount to an error of law on the part of the Tribunal below. It did not appear to us that any of the matters said to be "relevant considerations" were ones which, in the circumstances of the present case, the Tribunal was bound to take into account as a matter of law.
In so far as the failures were said to relate to whether the complaint should have been amended to allow the appellant to pursue a complaint of victimisation, we have already explained why the Tribunal did not err in refusing to allow such an amendment. Since such an amendment was not sought or allowed, there was no error in not considering matters relating only to such a claim. Similarly, a complaint of aiding and abetting could not succeed, given the parties to the proceedings, the circumstances of the case set out in the complaint, and the fact that the respondent did not engage in unlawful race discrimination. Thus, there was no error as a result of failing to take into account material going only to a claim of aiding and abetting as that claim was sought to be developed during the hearing.
In addition, other instances relied upon by the appellant related to the Tribunal's consideration of the evidence and its conclusions of fact, including as to the credibility of witnesses. The appellant contended that the Tribunal failed to consider the credibility of the respondent's witnesses, but it is apparent from the reasons given by the Tribunal that, while not reaching an adverse conclusion as to the overall credibility of the witnesses, it gave careful consideration to the aspects of their evidence it either accepted or rejected. The conclusions reached were open on the evidence. There was no failure to take into account a relevant consideration, in the applicable sense, by the Tribunal in any of these regards.
A careful reading of the Tribunal's decision demonstrates that it was well aware of the statutory tests which needed to be met when considering a complaint of race discrimination. It cannot properly be said that the Tribunal, in dealing with the complaint and evidence before it, did not take into account considerations relevant to whether the appellant had been discriminated against on the ground of his race.
We find no error in the Tribunal's decision on the basis that it failed to take into account relevant considerations, as submitted by the appellant. Consequently, we dismiss the appeal based on this ground.

[20]

Bias

At MF246 to MF257 and elsewhere, the appellant submitted that the Tribunal was biased against him. As we understood them, the submissions regarding bias relied upon various types of conduct which can be adequately summarised for present purposes as follows: 1. the Tribunal disallowed several questions the appellant tried to ask witnesses; 2. the Tribunal preferred the evidence of some witnesses over the appellant's; 3. several rulings were made by the Tribunal during the course of the hearing not in the appellant's favour; 4. the Tribunal failed to adopt the appellant's interpretation of various words used by witnesses.
The appellant did not distinguish between a claim of actual or apprehended bias on the part of the Tribunal in the material he submitted for the appeal and he did not draw any distinction between actual and apprehended bias at the hearing. Nonetheless, we understand that the appellant maintains that the Tribunal was either actually biased against him or that such bias would be reasonably apprehended.
A case of actual bias is difficult to make out as it involves a subjective test. As the authors of Judicial Review of Administrative Action and Government Liability (6th ed 2017, Thomson Reuters) state at [9.40]: "A claim of actual bias requires cogent evidence that the decision-maker was in fact biased. Actual bias will not be made out by suspicions, possibilities or other equivocal evidence. In the absence of an admission of guilt from the decision-maker, or, more likely, a clear and public statement of bias, this requirement is difficult to satisfy."
We are satisfied that the material before us, especially as to what occurred during the hearing at first instance and the reasons for decision, does not bespeak actual bias on the part of the Tribunal or of either of the panel members by whom the Tribunal was constituted. The specific matters and transcript extracts that the appellant referred to as evidencing bias do not establish that the presiding Member, who made the rulings on questions in cross examination and other matters during the hearing, was actually biased. The nature of the rulings and the explanations given are consistent with the ordinary conduct of proceedings in the Tribunal. Likewise, the reasons of the Tribunal, which explain why some witnesses' evidence was accepted and why other witnesses' evidence was rejected, do not demonstrate actual bias. The reasons for reaching the various conclusions were balanced and satisfactorily explained. The fact that the Tribunal understood some witnesses' evidence and use of words in a way which was consistent with ordinary English usage but with which the appellant did not agree also does not establish actual bias. The heavy onus of proving the subjective state of mind of the Members, such that they had a predisposition to decide the matter adversely to the appellant, has simply not been satisfied.
As to apprehended bias, the plurality of the High Court in Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 stated at [31]: "It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."
This is an objective test. In its application to the Tribunal, the fair-minded lay observer is to be attributed with knowledge of the salient facts upon which the claim is made and of the processes of the Tribunal and its members when determining disputes or actions that are before them: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87; [1990] HCA 31.
As we have noted above, the appellant was given considerable time and latitude during the hearing before the Tribunal to question witnesses and to present his case. We have previously noted that the fact that the appellant was not permitted to ask certain questions of certain witnesses did not involve a denial of procedural fairness. Nor, in our opinion, might it lead a fair-minded lay observer reasonably to apprehend that the Members hearing the matter might not bring an impartial and unprejudiced mind to the resolution of the issues before the Tribunal. Similarly, the fact that the Tribunal found against the appellant on aspects of his claim, or preferred the evidence of one of the respondent's witnesses over that of the appellant, does not on its own establish, in this case, apprehended bias. Moreover, we have already explained above in relation to other grounds of appeal why there was no error by the Tribunal in its decisions and approach, concerning the claims of victimisation and aiding and abetting, and its dealing with the evidence, both at the hearing and in making its decision. The legitimacy of those decisions and approach would inform a fair-minded lay observer's assessment of whether bias might be reasonably apprehended. We do not find that the test for apprehended bias has been met.
In all the circumstances, we do not accept that a case of actual or apprehended bias has been made out. We reject the appeal based on the ground of appeal that the Tribunal was biased.

[21]

New evidence

The appellant at various places in his submissions in the Master File sought to rely on what was called "new evidence" - see for example MF17, MF18, MF71 and MF220. The new evidence comprised the material provided or referred to at MF403 to MF451 and described at MF402 as follows: 1. "New Evidence #1: Racial Bias in Judgments of Physical Size and Formidability: From Size to Threat" - an article from the Journal of Personality and Social Psychology, 2017 Vol 113 No 1, pp 59 - 80; 2. "New Evidence #2: People see black men as larger, more threatening than same-sized white men" - a print out from a website (apparently the Los Angeles Times, Science Now section, accessed on 3 December 2017) of an article dated 14 March 2017; 3. "New Evidence #3: Race Affects How We Learn to Fear Others, Study Says" - a print out from a website (apparently National Geographic, accessed on 3 December 2017) of an article dated 28 July 2005, which appears not to be complete; 4. "New Evidence #4: Video File: Harassment" - a video apparently showing a person stepping onto a bus and sitting on a bus (identified by its registration plate) without identifying when this occurred; 5. "New Evidence #5: NSW Police Online Report" - a blank "Report To Crime Stoppers" form apparently from the NSW Police force website, accessed on 13 December 2017; 6. "New Evidence #6: Analysis of Deletion of Surveillance Videos" - this appears to be submissions as to the likelihood of surveillance videos being deliberately or negligently destroyed by the respondent to the prejudice of the appellant.
Broadly, the appellant contended that this new evidence demonstrated the inaccuracy or lack of credibility of the evidence given by the respondent's witnesses at the hearing. It was contended that items 1 to 3 were not available at the hearing at first instance because "the line of questioning was obstructed by false testimony during the hearing…". Item 4 was not available because the event occurred after the hearing. Item 5 was not available because the "need for this evidence became apparent during the nonsensical testimony of Sunny Brailey"; and Item 6 was said not to be available because the "need for this evidence became apparent during the false testimonies throughout the hearing. The deletion of surveillance video aided and abetted false testimonies by [the respondent]".
We specifically note that this appeal is under s 80(2) and is not one where, in our view, the grounds warrant a new hearing, within s 80(3)(a) of the NCAT Act. In an appeal under s 80(2) of the NCAT Act, given the absence of an express power to admit "fresh evidence" or further evidence, a party is not generally entitled to rely on such evidence. Nonetheless, the Tribunal is permitted under s 38(1) of the NCAT Act to "determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision". Consequently, we are of the view that the Appeal Panel may in appropriate circumstances decide to permit a party to adduce new or further evidence in an appeal being dealt with under s 80(2).
In this regard, some assistance may be derived from a consideration of the principles which governed the grant of new trials on the ground of the discovery of fresh evidence at common law. In Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444; [1955] HCA 16, the High Court held: "If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial."
In the later case of CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, the majority (McHugh, Gummow and Callinan JJ) considered the basis for the exercise of discretion in the context that the purpose of the provision in question, by allowing for fresh evidence, existed to facilitate the correction of an error where such error probably occurred because the further evidence was not before the primary judge. Their Honours said at [149]: "… Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tended before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, and other judge might make a different order. The second was that the best interests of the children required a rehearing of the husband's application…"
The requirement that any further evidence should be likely to have produced a different result before it should be admitted on appeal was taken up by the Appeal Panel in Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217 at [10] and Hong v Wentworth Management Services (NSW) Pty Ltd [2017] NSWCATAP 154 at [15].
Adapting these principles to the circumstances of the Tribunal and, in particular, appeals being dealt with under s 80(2) and not s 80(3), we are of the view that the Appeal Panel should not generally permit further evidence in such appeals unless: 1. it is reasonably clear or likely that, if the evidence had been adduced at the hearing at first instance, it would have produced a different result; 2. the party seeking to adduce the evidence exercised reasonable diligence in procuring the evidence prior to the hearing; 3. the demands of justice so require.
It appears to us that the "new evidence", in items 1, 2, 3 and 5, is general in nature and is not specifically applicable to the appellant's circumstances or the environment in Wollongong where the conduct complained of occurred. We are not satisfied that it would be likely to have produced a different result even if it had been before the Tribunal at first instance. Nor does it appear that the appellant exercised reasonable diligence in order to procure that evidence before the first instance hearing.
The video "new evidence", in Item 4, even if the circumstances and time were identified, appears to depict a bus stopping short of a passenger, at some time after the hearing, and what happened to a passenger when he boarded the bus. If the incident indeed occurred after the hearing, as the appellant suggested, it cannot be the subject of the complaint before the Tribunal at first instance, which was limited to conduct in the period from 28 July 2016 to 25 November 2016 (see Chen at [8]). We are far from satisfied that, had the video been adduced in evidence before the Tribunal below, it would have been likely to produce a different result.
Item 6 appears to us not to be evidence at all but is rather a submission. It goes, as we understand it, to whether the Tribunal should have accepted some of the evidence of the respondent's witnesses concerning surveillance video recordings. In our view, the appellant has not demonstrated that the findings made by the Tribunal, based upon the evidence, were not open to it.
In no case does it appear to us that there are circumstances which mean that the demands of justice in this case require the "new evidence" to be admitted.
In these circumstances, we reject the appellant's applications to adduce the new or further evidence. To the extent that the appellant seeks leave to appeal, in respect of that new evidence, we would also refuse leave. There does not appear to us to be any issue of principle, question of public importance, matter of administration that might be capable of general application, or any reasonably clear injustice, factual error or unorthodoxy in the fact finding process likely to have produced an unfair result such as would justify a grant of leave to appeal, in accordance with the principles referred to in Collins v Urban [2017] NSWCATAP 17 at [84].

[22]

Other applications referred to in the submissions

The appellant also purports to make a substantial number of other types of applications throughout his written submissions. These include, by way of typical examples and without attempting to be exhaustive: 1. At MF13 to MF14, MF29, MF38, MF43, MF50 to MF51, MF60, MF69 to MF70, MF90, MF92, MF99 to MF101, and MF258 to MF259, applications to "strike" the evidence of various witnesses, primarily on the basis of "false testimony"; 2. At MF102, an application for a "competence hearing" in respect of Mr Brailey, whom the appellant contended was an unsuitable witness by reason of mental incompetence, so that his evidence should be declared void on that basis ; 3. At MF13, MF73, MF85, MF92 and MF101, applications "to apply an adverse inference", as well as motions to pursue perjury charges, in relation to the "false testimonies" of various witnesses; 4. At MF104, an application to recall a witness, Mr Kelly, "to answer questions pertaining to the deletion of surveillance videos"; 5. At MF191 to MF195, MF197 to MF200, MF204, MF209 to MF210, and MF214 to MF215, applications to amend the complaint to include claims of victimisation under s 50 of the AD Act; and at MF201, of aiding and abetting under s 52.
On an appeal under s 80(2) of the NCAT Act, such as the present, the nature and extent of the appeal is governed by the grounds of appeal identified by the appellant in the notice of appeal. Such an appeal is not an opportunity for the appellant to conduct a new hearing or to make applications or submissions that should, if they were to be made at all, have been made at the time of the hearing at first instance. In so far as the substance of these applications has been dealt with above, when considering the appellant's grounds of appeal, they should be rejected for the reasons we have given there. In so far as the applications go beyond the grounds of appeal, they should be rejected on the basis that they do not properly arise on this appeal.
Finally, we address the appellant's contention, made in his "Extended Submissions" (for example at MF531ff) and repeated in his oral submissions, that the Tribunal below defamed him by publishing its reasons for decision on the internet and this made the Tribunal's decision void. We do so for the sake of completeness and to address the appellant's obvious concern, even though it does not appear to us to be obviously the subject of one of his grounds of appeal.
The alleged defamation concerned the Tribunal's references to Mr Brailey having reported the appellant to police. In oral submissions, the appellant said: "There was a misconduct by the Tribunal judge in this case. The misconduct is that she published defamation on the internet. This is contained in para 63 of the Tribunal decision which says, 'By treating his...on certain terms.' 'By reporting his conduct to the police' is a defamation. … It was never reported. If you read the files, you'll see. Sunny Brailey and Meadows(?) was now reported twice. The Tribunal just then told me there is no police report. However, she then continued to use the word police report and published it in her Tribunal decision. That is 100% guaranteed defamation; that makes the Tribunal decision void."
It is correct that the decision and reasons for decision in Chen were published on the New South Wales Caselaw website on 27 November 2017. Those reasons contain at [63] the following: "By treating his complaint as being 'invalid' because it was vexatious and by reporting his conduct to police, Premier Illawarra provided Mr Chen with services on certain terms. But we are not satisfied that, in the same or similar circumstances, any of the people dealing with Mr Chen's complaints would have treated a person who was not Chinese, any differently."
Even if, which we do not accept, the comments at [63] did amount to defamatory matter for the purposes of the Defamation Act 2005 (NSW), there would be no liability for defamation in the circumstances of the present case because of the terms of s 27 of that Act and the common law.
Section 27 relevantly provides: "(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege. (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if: … (b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to): … (iii) the publication of matter in any judgment, order or other determination of the court or tribunal,
The Tribunal is "an Australian court or Australian tribunal" as defined in s 4 of the Defamation Act and the material in [63] of Chen constitutes "matter in any judgment, order or other determination of the court or tribunal". Thus, there would be a complete defence to any defamation that may have occurred.
The position under the Defamation Act reflects the wider common law position which was set out by the plurality in Mann v O'Neill (1997) 191 CLR 204 at 211-2 as follows: "It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties[3], witnesses[4], legal representatives[5], members of the jury[6] or by the judge[7]. It extends to oral statements and to statements in originating process[8], in pleadings[9] or in other documents produced in evidence[10] or filed in the proceedings[11]. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]"[12]. It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings, ie proceedings of tribunals recognised by law and which act "in a manner similar to that in which a Court of justice acts"[13]. Various considerations are relevant to the question whether proceedings are quasi-judicial[14]. However, the overriding consideration is "whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern"[15]. The privilege extends to members of tribunals[16] and to "advocates, litigants, and witnesses"[17]. And its scope is no less extensive in other respects than in the case of statements made in the course of judicial proceedings. ___________________________________ [4] Revis v Smith (1856) 18 CB 126 at 140-144; 139 ER 1314 at 1319-1321; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263-264; Seaman v Netherclift (1876) 2 CPD 53 at 56-57 per Cockburn CJ, 61 per Amphlett JA; Watson v M'Ewan [1905] AC 480 at 486 per Earl of Halsbury LC; Hargreaves v Bretherton [1959] 1 QB 45 at 51-54; Marrinan v Vibart [1963] 1 QB 528 at 534-536 per Sellers LJ. See also Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J. [5] Munster v Lamb (1883) 11 QBD 588 at 599, 603-604 per Brett MR. See also Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J; Clyne v NSW Bar Association (1960) 104 CLR 186 at 200-201; More v Weaver [1928] 2 KB 520 at 522 per Scrutton LJ; Rondel v Worsley [1969] 1 AC 191 at 229 per Lord Reid, 252 per Lord Morris of Borth-y-Gest, 266-267, 271 per Lord Pearce. [6] Bushell's Case (1670) 1 Freeman 1; 89 ER 2. See also Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ. [7] See Cabassi v Vila (1940) 64 CLR 130 at 140 per Starke J; Dawkins v Lord Rokeby (1873) LR 8 QB 255 at 263-264; Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 446 per Fry LJ, 451 per Lopes LJ; More v Weaver [1928] 2 KB 520 at 522. [8] Lilley v Roney (1892) 61 Law J Rep QB 727 at 727-728; Bottomley v Brougham [1908] 1 KB 584 at 588. See also Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ. [9] Lord Beauchamps v Sir Richard Croft (1595) 3 Dyer 285a at 285a; 73 ER 639 at 639. See also Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ. [10] See Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ. [11] See Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 451 per Lopes LJ; Lincoln v Daniels [1962] 1 QB 237 at 257 per Devlin LJ. [12] Gatley on Libel and Slander, 8th ed (1981), par 412, referring to Attwood v Chapman [1914] 3 KB 275 at 287. [13] Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J. See also Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892] 1 QB 431 at 442 per Lord Esher MR; O'Connor v Waldron [1935] AC 76 at 81 per Lord Atkin; Trapp v Mackie [1979] 1 WLR 377 at 379 per Lord Diplock, 385-386 per Lord Fraser of Tullybelton; [1979] 1 All ER 489 at 491, 497. [14] See Trapp v Mackie [1979] 1 WLR 377, especially at 379 and 383 per Lord Diplock; [1979] 1 All ER 489 at 491-492, 495. Absolute privilege has been held to attach to proceedings in a military court: Dawkins v Lord Rokeby (1873) LR 8 QB 255; Bamford v Clarke (1876) 14 SCR (NSW) 303; a solicitors' disciplinary committee: Addis v Crocker [1961] 1 QB 11; Teletax Consultants Ltd v Williams [1989] 1 NZLR 698; Hercules v Phease [1994] 2 VR 411; an inquiry of Benchers of an Inn of Court: Lincoln v Daniels [1962] 1 QB 237; an ecclesiastical commission: Barratt v Kearns [1905] 1 KB 504; a board of inquiry into police malpractice: Bretherton v Kaye & Winneke [1971] VR 111; an appeal to a public service board: Thompson v Turbott [1962] NZLR 298; hearings by a local authority into a town planning scheme: Atkins v Mays [1974] 2 NZLR 459; and an inquiry into the dismissal of a school teacher: Trapp v Mackie [1979] 1 WLR 377; [1979] 1 All ER 489. [15] Lincoln v Daniels [1962] 1 QB 237 at 255-256 per Devlin LJ. [16] Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J. [17] Copartnership Farms v Harvey-Smith [1918] 2 KB 405 at 408 per Sankey J."
For these reasons, we are of the view that, even if the material in [63] of Chen were defamatory, the Tribunal could not be liable in defamation and its decision would not be void.

[24]

Costs

The respondent has sought its costs of the appeal and has specified the amount it has expended in dealing with this appeal. As we understand it, the appellant has also sought costs of the appeal.
In cases such as the present, under s 60(1) of the NCAT Act, parties ordinarily bear their own costs in the Tribunal. Notwithstanding this provision, costs may be awarded, under s 60(2), if the Tribunal is satisfied that there are special circumstances warranting an award of costs. In this regard, s 60(3) provides: "(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant."
The respondent submits that there are special circumstances in this case which would warrant an award of costs. The factors cited by the respondent are that: 1. the appellant provided a great quantity of documents in the appeal which did not identify a focussed question of law for determination. This disadvantaged the respondent and put it to considerable expense in preparing for the appeal; 2. nothing put forward by the appellant has raised an arguable question of law as to warrant an appeal being brought; and 3. the appellant raised matters which were not specified in the appeal and which raised, in florid language, issues of misconduct by the Tribunal. This gives rise to the question whether the proceedings are vexatious or misconceived or lacking in substance.
The appellant's contention, at MF493 to MF494 was, in substance, that the respondent's case in response to the appeal was "vexatious, frivolous, misconceived, and lacks substance" and he should be awarded his costs. As the appellant has been completely unsuccessful on his appeal, we do not think that it could properly be said that the respondent's case on appeal was as the appellant contended. We do not believe that there is any basis for awarding costs in favour of the appellant.
As the respondent was entirely successful on the appeal, we should address the respondent's application for costs in more detail.
"Special circumstances" under s 60(2) are circumstances that are out of the ordinary. They do not have to be extraordinary or exceptional: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11], relying on the reasoning of Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60], concerning a similar provision in previous legislation.
As we understand it, the respondent submits in substance that there are special circumstances of the types identified in pars (a), (c) and (e) of s 60(3).
Par (a) concerns whether the appellant conducted the appeal in a way that unnecessarily disadvantaged the respondent. The respondent contended that the great volume of documents together with the lack of clear identification of the questions of law resulted in the respondent being prejudiced. The prejudice was said to consist primarily of the considerable expense incurred in preparing for the appeal.
While we accept that the appellant did provide a Master File of 460 pages, supplemented by four smaller folders of submissions and documents, it does not appear to us that this would necessarily have caused such unreasonable additional preparation costs as to amount to the respondent being "unnecessarily disadvantaged".
The grounds of appeal were stated relatively succinctly in the attachment to the notice of appeal.
The Master File, upon which the appellant principally relied, was organised and helpfully indexed. It consisted of: 1. The index - MF1 to MF4; 2. Submissions in respect of the grounds of appeal (and miscellaneous applications), supported by lengthy extracts from the transcript of the first instance proceedings, interspersed with the submissions, which could be seen as helpful - MF5 to MF260 3. Other or fuller extracts from the first instance transcript identified by topic - MF260 to MF401; 4. The proposed "new evidence" items 1 to 6 - MF402 to MF455; and 5. Extracts from the Acting President of the Anti-Discrimination Board's Report, which was before the Tribunal at first instance - MF456 to MF460.
The four supplementary folders were similarly indexed and organised. They comprised: 1. An Addendum to the Master File of 9 pages - MF461 to MF469; 2. Response by Appellant of 49 pages - MF473 to MF522; 3. Extended Submissions by Appellant of 25 pages - MF523 to MF547; and 4. Extension of Time and Amendment to Submission of 15 pages - MF548 to MF562.
The hearing of the appeal itself was conducted efficiently and took only half a day.
While the appellant's material was not as focused or concise as might be expected from an experienced legal practitioner, he was entitled to act for himself on this appeal. In our view, any additional burden that was placed on the respondent by having to deal with the appellant's documentation in preparing for the appeal or by the hearing of the appeal itself was not undue or unnecessary. Thus, we do not accept that the respondent was "unnecessarily prejudiced" so that special circumstances falling with par (a) were established.
Par (c) concerns whether the appellant's grounds of appeal had no tenable basis in fact or law. The respondent contended that none of the grounds of appeal raised an arguable question of law. While we have rejected each ground of appeal, it does not follow that the grounds were untenable in law or that no arguable question of law was raised, such that the appeal could have been dismissed summarily without a full hearing. The Appeal Panel explained in Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135, in the context of s 60(3)(c), at [44]: "The expression 'no tenable basis in fact or law' relates to the common law tests developed and applied in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. For a claim to have no tenable basis in fact or law it must be so obviously untenable that it cannot possibly succeed: General Steel at 130. 'Manifestly groundless' or 'clearly untenable' are equivalent expressions."
While the appellant's grounds of appeal may have been weak and were rejected, we do not accept that they were untenable in law, in the relevant sense and to the requisite degree, so as to amount to special circumstances within par (c).
Par (e) concerns whether the appeal was frivolous or vexatious, or otherwise misconceived or lacking in substance. In this regard, the respondent focused upon the appellant's "florid language" and his unsuccessfully raising issues of misconduct by the Tribunal. While the appellant may have been misguided in raising allegations of bias and defamation, we believe this should be understood in the context of his being a litigant in person, dealing with a system with which he was not familiar. The appellant did not appear to us to be attempting to be deliberately offensive or obstructive. Rather he was attempting to prosecute his appeal to the best of his ability. We draw attention to the appellant's statement in relation to the bias allegations, at MF258: "I must say that I greatly appreciate the patience of the Tribunal Judge throughout the hearing. I was quite inexperienced with courtroom proceedings, and the Tribunal Judge was very patient with me. The above discussion on the biases of the Tribunal Judge is only an objective analysis of issues of fairness during the proceedings."
In the circumstances, we do not believe we should conclude that there were special circumstances falling within par (e) of s 60(3) such as would warrant an award of costs against the appellant.
We do not find that there were other special circumstances relevant in the present matter.
For these reasons, although the appellant's conduct in this appeal may have come close to the line when viewed as a whole, we think that the appropriate conclusion is that there were no special circumstances which would take this matter outside the operation of s 60(1) and warrant an award of costs. Accordingly, we do not propose to make an order for costs of this appeal.
Orders
Accordingly, the Appeal Panel orders: 1. The appeal is dismissed. 2. Leave to appeal is refused.

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