Crewdson v President, Anti Discrimination Board of NSW

1 The Appellant by two Notices of Appeal appeals against three decisions made by the Tribunal below in the course of proceedings brought by him against the Respondents, alleging victimisation under s 50 of the Anti Discrimination Act (the AD Act). The first two of those decisions were refusals to grant the Appellant an adjournment of his application for interim orders and an adjournment of the Respondents' application for dismissal of the complaint, when that hearing commenced on 1 May, and again on 17 May, prior to the second hearing date of 23 May 2001. The third of those decisions was the dismissal of the complaint for want of prosecution under s 111(1) of the AD Act. 2 The history of these proceedings is set out comprehensively at paras 3 to 7 of the Tribunal's decision of 29 June 2001. Those paras incorporate paras 5 to 20 and 58 and 59 of a decision of the Tribunal of 16 May 2000 ; see Crewdson v President, Anti Discrimination Board of NSW [2000] NSWADT 60. No issue has been taken with that account and it is adopted by the Panel for the purposes of this appeal. It is sufficient to observe that the First and Second Respondents were parties to a Deed of Release with the Appellant, as part of a settlement of two cases pending before the Equal Opportunity Tribunal in October 1998. The Third and Fourth Respondents were the solicitor and barrister then acting on behalf of the Department of Community Services and the Central Sydney Area Health Service, the respondents in those pending proceedings. Those proceedings were concluded on 6 November 1998 pursuant to the terms of the Deed. However, on 21 January 1999 the Appellant lodged complaints of victimisation against the present Respondents, on the grounds that he had been forced to execute the Deed by the Respondents. Two years elapsed, during which time the Appellant's complaint was declined by the President of the Anti Discrimination Board, the Appellant's review of that decision was allowed, the complaint was referred again to the President of the Board and finally referred to the Tribunal by the President for hearing under s 94 of the AD Act in January 2001. 3 It is of particular importance for the purposes of this appeal to note that there was no substantive hearing of the Appellant's complaint of victimisation on 1 and 23 May 2001. The Appellant's application before the Tribunal was for interim orders relating to his re-employment by the Department of Community Services. As noted above, the Appellant effectively did not pursue that application, but rather sought an adjournment which was opposed by the Respondents. The Respondents in turn had lodged an application for dismissal of the Appellant's complaint (under s 111(1) of the AD Act), as was their right, and pressed the Tribunal to hear that application. A reading of the decision shows that, following submissions from all parties, the Tribunal was persuaded to hear the s 111(1) application, over the Appellant's objection. Accordingly, the only jurisdiction vested in this Panel is to establish whether the Tribunal erred at law in refusing the Appellant's adjournment applications or in dismissing the complaint for want of prosecution. 4 In order to understand the wide-ranging nature of the Appellant's copious written submissions, and to place the decisions which the Tribunal made into their proper context, it is necessary to highlight some procedural aspects of these proceedings since early 2001. Background 5 On 12 April 2001 the Appellant attended a case conference with a judicial member of the Tribunal, in accordance with the practice of the Tribunal to ensure that cases are adequately prepared for hearing, particularly in circumstances where a party may be unrepresented. Representatives of the Respondents were also in attendance. The Appellant sought certain interim orders, and the Respondents foreshadowed an application to summarily dismiss the complaint. The judicial member purported to make some orders which were beyond the power of a judicial member, sitting alone, to make. He also set the matter down for hearing on 1 May 2001. The impugned orders were subsequently set aside and another judicial member (Mr Innes) was assigned to the hearing of the Appellant's matter. However, the date allocated to the hearing of the matter, being 1 May 2001, was confirmed. Thus, as at 1 May 2001, there were no orders in existence and it was open to the Appellant to make whatever application he wished to make on that day. This is acknowledged by para 6 of the Tribunal's decision of 29 June 2001. 6 At the commencement of the hearing on 1 May 2001, the Appellant sought an adjournment, on the grounds of lack of financial resources and his personal circumstances, including the absence of any legal representation and the hardship occasioned by the joint hearing of his interim order application and the s 111(1) application by the Respondents. That application was refused. The Tribunal commenced the s 111(1) hearing after explaining the procedure to the Appellant, although it appeared that the Appellant was "better equipped than the average unrepresented litigant" (para 19). The Tribunal's decision records the difficulty it encountered in the conduct of the hearing, in so far as the Appellant was either unable or unwilling to accept the Tribunal's procedural rulings. At the end of the first day of the hearing, the Appellant was part-way through a lengthy cross-examination of the Fourth Respondent. A further hearing date was set, namely the 23 May 2001, and directions were made as to the scope of the remaining cross examination of the Fourth Respondent. The Appellant did not provide any reason to the Tribunal why 23 May was an unsuitable date for the matter to continue. 7 On 14 May the Appellant applied again to the Tribunal, by way of letter (and supplemented by a further letter dated 17 May), for an adjournment of the hearing of 23 May. The reasons advanced were similar to those already canvassed on 1 May, but included a reference to proceedings in the Industrial Relations Commission commenced by the Appellant on his own behalf and separate proceedings on behalf of another party. The latter proceedings were also set down for 23 May 2001, but that date had been set after the Tribunal had nominated 23 May. That application was refused on 18 May. 8 On 18 May 2001 the Appellant lodged a Notice of Appeal against the refusal of his adjournment applications and the Tribunal's decision to hear the s 111(1) application. On 22 May 2001 he sought an urgent stay of the proceedings before the Tribunal, on the basis that his appeal lodged on 18 May would be thwarted if the hearing was to continue. That application was refused. 9 On 23 May, that is, at the commencement of the second day of the hearing, the Appellant sought the disqualification of the Tribunal for actual bias, that being alleged pre-judgment of issues and consistent rulings against him. The Tribunal declined to disqualify itself and directed the Appellant to continue with his cross examination of the Fourth Respondent on the remaining relevant topics. After some further challenges to the Tribunal's procedural directions, the Appellant informed the Tribunal that he was seeking to withdraw his complaint. He asserted he was taking that course because of alleged unconscionable conduct on the part of the Tribunal, because of his lack of resources and because of the stress occasioned to him by the proceedings. 10 The Tribunal took two adjournments and questioned the Appellant after each to ensure that he understood the consequences of his proposed course. The Appellant persisted, so that ultimately the Tribunal dismissed the complaint for want of prosecution under s 111(1) of the AD Act. 11 On 15 June 2001 the Appellant filed the Notice of Appeal which is the subject of these proceedings, along with the Notice of Appeal filed by him on 18 May 2001. The former Notice of Appeal sets out alleged errors of law over two closely typed pages, including extensive references to the transcript of 23 May. The latter sets out alleged errors of law over two and half closely typed pages, again making reference to the transcript of 1 May. 12 The appeal was set down for hearing on 17 August 2001. On 20 July 2001 the Appellant wrote to the President of the Administrative Decisions Tribunal seeking the removal of the Deputy President of the Tribunal from the Panel allocated to the hearing of the appeal. That request was declined. On 24 July the Appellant filed voluminous typed written submissions on eleven grounds of appeal, over twenty six and a half (26.5) pages (the grounds were numbered up to twelve, but "eight" was omitted). These submissions contained extensive references to transcript and relevant case law. 13 On 16 August 2001 the Appellant made an application in writing (again by a typed document) for the vacation of the hearing date of the appeal and for a stay of the decision of the Tribunal of 29 June. The bases for those applications were "the flimsy and inadequate" reply filed by the Respondents to the Notice of Appeal, the failure by the Respondents to file written submissions in response to the Appellant's submissions, the previous involvement of the Deputy President in the substitution of Mr Innes for the judicial member who conducted the case conference on 12 April, foreshadowed allegations of contempt of the Tribunal by the Respondents and, last but by no means least, the issue of a summons to produce documents which had been recently served on the Crown Solicitors Office. 14 On 17 August this Panel convened to hear the appeal. The Appellant relied upon the matters set out in his letter of 16 August in support of his application to have the Deputy President disqualified for bias (whether apprehended or actual was not made clear) and for a stay of the Tribunal's decision below. Both applications were refused. The Appellant then made an application for an adjournment of the appeal hearing. Firstly, he relied upon non compliance by the Respondents with the directions as to the filing of written submissions and sought further and better particulars of the Reply to the Notice of Appeal. Secondly, he relied upon the absence of the Fourth Respondent and thirdly, he relied upon the fact that the conduct of the proceedings were causing him considerable stress. The application for an adjournment was opposed (as was every other application by the Appellant seeking to postpone the proceedings indefinitely) and was refused by the Panel. However, after the appeal had progressed to an extent, the Panel indicated that the Appellant's written submissions appeared to "cover the field". In order to make some allowance for the Appellant's lack of representation, he was given the opportunity to file further written submissions, to be served upon the Respondents who might then also file written submissions. The Appellant filed "final written submissions" on 17 September 2001 (fourteen closely typed pages), to which the Respondents replied on 9 October 2001. 15 This rather protracted history demonstrates a number of things. The Appellant has been actively engaged in litigation in this jurisdiction, and more recently in other jurisdictions, for some three years, during which time he has researched, prepared and presented many comprehensive written submissions on both the relevant law and the facts surrounding his claims, without the assistance of legal personnel (as far as the Tribunal is aware). The various complaints he has made arise out of his loss of employment in 1998. He has not obtained alternative employment. He has informed the Tribunal on several occasions (and the Tribunal accepts) that he is homeless and financially impecunious. It is apparent that these proceedings have become the focus of all of his considerable energies and that he remains convinced of the justice of his cause. The Tribunal does not and could not doubt that the Appellant is under great stress. He is nonetheless capable of adequately arguing his case. His circumstances, on his own admission, are not likely to change, such that the stress which he suffers will abate in the near future. On the contrary, a very real and significant cause of the stress which the Appellant claims as an obstacle to the finalisation of the proceedings, is the proceedings themselves. Grounds of Appeal 16 The following Grounds of Appeal are taken from the Appellant's two Notices of Appeal dated 18 May and 15 June 2001. Whilst the Notices of Appeal alleged a significant number of errors of law, they may be conveniently dealt with under the following headings. Refusal to Grant Adjournment Applications of 1 May and 17 May 2001 17 The refusal to grant an adjournment is an exercise of judicial discretion and is therefor governed by the principles laid down in House v The King (1936) 55 CLR 499 ; see also Norbis v Norbis (1986) 161 CLR 513. Those principles establish that such a decision will only be set aside if it can be demonstrated that the primary decision maker acted upon a wrong principle, allowed extraneous or irrelevant matters to guide the decision, misunderstood the facts, or failed to take into account a material consideration. A manifestation of error in this regard is a course adopted by the primary decision maker which no reasonable decision maker could have adopted in all the circumstances. 18 The reasons of the Tribunal for refusing the adjournment application of 1 May 2001 appear at paras 9 to 12 inclusive of the Tribunal's decision of 29 June 2001. In short form, the bases advanced by the Appellant for the adjournment were, in the opinion of the Tribunal, either unlikely to change, irrelevant or inconsistent with the duty of the Tribunal to act efficiently and expeditiously. 19 The Panel cannot find any error of the kind which would warrant setting aside the Tribunal's decision. Given the statement of the history of the proceedings in the course of the Tribunal's decision, it could not be said that the Tribunal mistook the facts or took into account an irrelevant consideration. The Tribunal was acutely aware of the Appellant's personal circumstances, and made due allowance for them. Contrary to the assertions of the Appellant that the Tribunal denied him natural justice and acted in bad faith in refusing the adjournment, the Tribunal's decision reflects its consideration of the competing submissions. It is not a denial of natural justice to determine an application promptly ; no amount of repetition by the Appellant of the bases for his application would have improved its merits. 20 As for the application of 17 May, the Tribunal delivered written reasons on 18 May, which similarly do not disclose any error of the nature identified by the High Court in the authorities cited above. In particular, paras 4, 5, 6 and 7 of the Tribunal's decision disclose an exercise of discretion wholly within the parameters of discretionary decision making. 21 Allied to this Ground of Appeal is an alleged error of law by the Tribunal in refusing to disqualify itself on the Appellant's application. It is a feature of the Appellant's conduct of this matter before the Tribunal and the Panel, that a refusal to grant an adjournment was followed on each occasion by an application by the Appellant that the Tribunal or Panel disqualify itself. This Panel can only deal with the circumstances as they existed before the Tribunal. 22 The Appellant's written submissions appear to rely upon actual bias on the part of the Tribunal ; indeed, the premise is that the refusal of the adjournment application and the various procedural rulings made in spite of the Appellant's protests constitute evidence, without more, of prejudgment and hostility on the part of the Tribunal. Alternatively, the Appellant argues that there was a reasonable apprehension of bias warranting disqualification, because the judicial member of the Tribunal (Mr Innes) had previously presided in a matter (not one of the Appellant's matters) concerning the dismissal of a complaint which was the subject of a Deed of Release between the parties. 23 It is not necessary to repeat the well established principles relating to the disqualification for bias of a judicial officer. Both the Appellant and the Respondents in their submissions have referred to the relevant authorities. The Panel can discern no hostility or prejudgment by the Tribunal such as is alleged by the Appellant. True it is that the Tribunal was obliged on occasions to interrupt the Appellant and cut short his oral submissions ; the proceedings were becoming unduly lengthy and, had the Tribunal not done so, it is almost certain that many more hearing days than were allocated to the matter would have to be found, with no prospect that the Appellant's submissions would assist the Tribunal in the resolution of the applications before it. The Appellant simply refused to accept the procedural rulings made by the Tribunal, thereby frustrating the progress of the hearing and necessitating a firm response to the Appellant's behaviour. However, the Tribunal's conduct of the proceedings in no way demonstrated actual bias. As for apprehended bias, no reasonable bystander could entertain an apprehension of bias on the part of the Tribunal, arising out of one member having adjudicated a totally unrelated matter between entirely different parties on some prior occasion. This ground of appeal fails. 24 Before leaving this ground of appeal, some general remarks concerning the expectations of unrepresented litigants, and the Appellant in particular, are warranted. The Appellant's desire to indefinitely postpone the proceedings until he has the financial and emotional resources to continue, ignores a fundamental consideration in the administration of the Tribunal generally, that is, the efficient, effective and expeditious conduct of proceedings (s 3 of the Administrative Decisions Tribunal Act 1997). All parties coming before the Tribunal have a right to expect that these objects of the Act governing the Tribunal will be met. It is not a right which vests solely in complainants ; respondents too have an interest in the efficient and expeditious resolution of proceedings. The public interest in the proper administration of the Tribunal would be seriously undermined if a party, whether represented or not, could dictate the progress of proceedings. Whilst every effort will be made by the Tribunal to accommodate the needs of unrepresented litigants in order to ensure fair access to the Tribunal, that cannot be done at the expense of observing its legislative charter. Dismissal of Complaint under s 111(1) of the AD Act. 25 This ground of appeal is expressed in terms of an objection to the procedure followed by the Tribunal in hearing the s 111(1) application and in terms of the dismissal under s 111(1) itself. The former revolves around the Appellant's dissatisfaction with the order in which the Tribunal dealt with the applications before it, the material which was placed before the Tribunal in support of the s 111(1) application and the Tribunal's ruling on the permissible bounds of cross examination of a Respondent (Ms Anderson) by the Appellant. The latter alleges various errors of law by the Tribunal in dismissing the complaint for want of prosecution. 26 It is strictly speaking unnecessary to deal with the Appellant's submissions concerning the procedure followed by the Tribunal in hearing the s 111(1) application brought by the Respondents. It is unnecessary because this aspect of the proceedings became entirely moot when the Appellant's application to withdraw his complaint prompted the Tribunal to dismiss it for want of prosecution. The Tribunal never made a finding to the effect that the complaint was frivolous or vexatious, that being the basis of the Respondents' application, and the basis of the various procedural rulings of which the Appellant now complains. The sole issue before this Panel is whether the Tribunal erred in dismissing the complaint on the basis that it did, a basis entirely different from that being urged upon the Tribunal by the Respondents. 27 Section 111 of the AD Act relevantly provides :- "(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. (1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint." 28 Paragraphs 38 to 40 of the Tribunal's decision of 29 June 2001 make it clear that the Tribunal considered but rejected the dismissal of the complaint under s 111(1A) as an appropriate response to the Appellant's application. The Appellant argued before the Tribunal (and before this Panel) that the decision to withdraw was "forced" upon him by the unreasonable and erroneous conduct of the Tribunal, and that it was not, for these reasons, a genuine and voluntary withdrawal. As the following analysis demonstrates, the Tribunal agreed with the proposition that the withdrawal was not genuinely offered, albeit the Tribunal rejected any suggestion of bias or error. 29 The Tribunal expressed itself as "loath to rely on an oral withdrawal". Given the attitude of the Appellant towards the Tribunal and the reasons advanced for the application to withdraw the complaint, the Tribunal was justifiably sceptical of the bona fides of the Appellant's application. That scepticism has in some respects been borne out by this appeal. 30 The most compelling construction of this turn of events in the proceedings is one that the Appellant himself acknowledges in the course of his written submissions on the appeal ; this was a tactical response by the Appellant to remove the proceedings from the Tribunal, as it was then constituted, having failed to achieve that result by any of his applications up to that point in time (see submissions of 24 July 2001 : "I had sought to withdraw my complaint under s 111(1A) of the AD Act as the only way to escape the miscarriage of proceedings and of justice that had been set up by the Tribunal.") Whatever the Appellant's beliefs about the partiality of the Tribunal, the proper course was to abide by the rulings of the Tribunal and allow it to deliver its decision on the Respondents' application. In the event that the decision was unfavourable to the Appellant, an appeal would ensure that his allegations of bias and denial of natural justice received appropriate consideration by an appeal Panel, and if substantiated, would lead to the setting aside of the decision below. The Tribunal's decision may not have been unfavourable to the Appellant, but by his actions the Appellant deliberately thwarted the Tribunal from a determination of the matter before it. 31 Subsection (1A) was inserted by Schedule 4 of the Anti Discrimination (Amendment) Act 1994 (No. 28) in order to clarify the Tribunal's express power to dismiss a complaint where the complainant wishes to withdraw the complaint. Prior to that amendment, it had been doubted that such a power existed : see Casey v Entrad Corporation Ltd [92-179] 17 November 1986. It is to be contrasted with the bases for dismissal under s 111(1). Those bases are more concerned with the objective character of the complaint, such as a complaint which is obviously unsustainable (frivolous), one which has no foundation in fact (vexatious), one which is misconceived or one which is lacking in substance : see Schulz v Medical Board of Queensland [2001] AATA 468. Proceedings can, however, be vexatious if :- 1. they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." Attorney-General v Wentworth (1988) 14 NSWLR 481, per Roden J at 491. 32 It is clear from these authorities that the motives of the complainant may also be relevant in determining whether a complaint is vexatious. 33 It is against this background that the construction of the phrase "for any other reason the complaint should not be entertained" falls to be determined. It was under this limb of s 111(1) that the Tribunal dismissed the Appellant's complaint (para 40). Whilst the Tribunal had regard to the ejusdem generis rule of statutory construction, it concluded that "any other reason" was sufficiently broad to allow for a want of prosecution. 34 The ejusdem generis rule (that general matters, which follow a reference to specific matters, are limited to things of the like kind to the specific matters) is in fact merely a subsidiary aid to the construction of terms, once it has been determined that general words are to be limited in their operation by specific words. That determination is made by reference to the context and subject matter of the legislation : see Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 ; Gas & Fuel Corp (Vic) v Comptroller of Stamps [1964] VR 617. 35 Whilst it is beyond doubt that the AD Act is remedial legislation and should thus be construed beneficially, it is not the case that every provision within the Act falls to be construed that way. As was observed by the Federal Court in Rose v Secretary, Department of Social Security (1990) 92 ALR 521 at 524, such a statute "calls for no narrow or pedantic construction; but, [where] it contains both enabling and excepting provisions [the latter] do not therefore necessarily require beneficial interpretation. It depends on the particular statutory provision and an analysis of its language and purpose." 36 The language and purpose of s 111(1) suggests that a beneficial construction (that is, one which favours the Appellant as the person claiming victimisation) is not called for. Its purpose is to allow the Tribunal in certain circumstances and in the exercise of its discretion to dismiss a complaint at any time in the course of proceedings. There is nothing on the face of the provision which warrants limiting "any other reason" to a genus of frivolous or vexatious or lacking in substance or misconceived. Given that these bases for dismissal include both objective and subjective features of the complaint itself, the phrase "any other reason" must refer to something other than the content or character of the complaint. In other words, it must be capable of encompassing some aspect of the proceedings themselves, such as a failure to diligently prosecute a complaint. The legislation thereby recognises that a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet if the complainant has demonstrated either an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed. 37 The Panel has not overlooked the obligation on the Tribunal to exercise the power to summarily dismiss a complaint with caution. We are not persuaded that the Tribunal disregarded the rights of the Appellant or failed to have regard to the exceptional nature of the power, or erred in the exercise of the discretion to exercise the power. The power exists in almost every jurisdiction and has been the subject of comment by the President of the NSW Court of Appeal in Fairey v Fairey (No 2) [2000] NSWCA 173 :- "The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants and preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case." 38 Applying those comments to the instant proceedings before the Tribunal, the Panel is satisfied that the exercise of the power under s 111(1) was appropriate in the particular circumstances of this case. 39 This ground of appeal fails. 40 A further ground of appeal was identified by the Appellant in his Notice of Appeal of 15 June 2001, namely that the Tribunal erred in hearing an application by the Respondents for costs against the Appellant. Whilst the Tribunal did hear the application, it declined to make an order for costs. There is no order for costs in existence which can enliven this Panel's jurisdiction. It is therefor unnecessary to further consider this ground of appeal. 41 The appeal is dismissed.

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