James v Department of Justice

The Decision

1. The Tribunal set out the allegations maintained by the appellant as follows: (1) The Respondent contravened ss 50(1)(a) and 53(1) of the [Anti-Discrimination] Act by: (a) making a misleading statement during the James No 1 proceedings (Allegation l); (b) in March 2018, refusing the Applicant's request for a review of the findings in the independent investigation report (OCM report) which dealt with a grievance she lodged on 11 September 2017 (Allegation 2); (c) failing to allow the Applicant to act in higher duties as a MOSP on or around 17 May 2017 or otherwise provide promotional opportunities for the Applicant and placing the Applicant on a transitional plan (Allegations 3 and 9); (d) requiring the Applicant to put leave forms in manually either via email or handing them to her manager rather than electronically (Allegation 4); (e) failing to give full support to the Applicant after she reported a Work Health and Safety incident in or around March 2017 (Allegation 5); (f) attempting to "discipline" the Applicant after she left work early on 2 August 2017 following the decision in James No 1 being delivered (Allegation 6); (g) requesting that the Applicant attend a meeting with Dr Anne Marie Martin, Ms Cathryn Hellams and Ms June Wong in August 2017 to develop a return to role plan to facilitate and support the Applicant's return to her substantive role following the decision in James No 1 (Allegation 7); (h) requesting that the Applicant meet with Ms Cindy Moore in or around October 2017 to discuss complaints that had been made against the Applicant by other staff (Allegation 8). (2) the Respondent contravened ss 49B and 49D (disability discrimination) of the Act by: (a) failing to allow the Applicant to act in higher duties as a Manager Offender Services Programs (MOSP) on or around 17 May 2017 or otherwise provide promotional opportunities for the Applicant (Allegation 10); (b) failing to make reasonable adjustments and appoint the Applicant to a position at Dillwynia Correction Centre (Allegation 11)."
2. The Tribunal noted that allegations 4 and 11 were not pressed by the appellant.
3. Section 50 of the Anti-Discrimination Act 1977 (NSW) provides: 50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) 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 this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
4. The Tribunal addressed each allegation of victimisation raised by the appellant, finding them not substantiated.
5. In relation to the allegations identified as 3 and 9, the Tribunal found that the placing of the appellant on a transitional plan was a detriment to the appellant. However, the Tribunal found that the conduct of the respondent in placing the appellant on a transitional plan did not occur "on the ground of" the fact that the appellant had lodged a complaint with the Anti-Discrimination Board or was pursuing proceedings in the Tribunal.
6. The Tribunal held: 106 Dr Martin [Assistant Commissioner, Offender Management and Programs, Dr Anne Marie Martin] vehemently denied that that the reason she developed the plan was to set Ms James up to fail. She gave a plausible explanation for her decision to place Ms James on the Transitional Plan. It is unsurprising that Dr Martin would be keen to ensure that Ms James was given, and was seen to be given, guidance about her new role, especially because it was likely that the decision to transfer Ms James would come under scrutiny. 107 Ms James' claim that senior managers, including Dr Martin, took a dim view of her actions in prosecuting the First Complaint in NCAT, is plausible. Equally it is plausible that the Plan was developed at least in part to address real or perceived concerns about Ms James' performance. Nonetheless, the available material does not support the inference being drawn that one of the real, genuine or true reasons Dr Martin placed Ms James on the Transitional Plan was because of her participation in the NCAT proceedings.
7. The Tribunal further held: 113 In fairness to Ms James, it ought to have been made abundantly clear to her from the outset that while she was on the Plan, she would be ineligible to apply for acting MOSP roles, how long that period of ineligibility was likely to last and any specific steps she needed to take to enhance her chance of being appointed to those roles. OCM made much the same point in its report. Nonetheless, it does not follow that one of the real, genuine or true reasons Ms Moore considered her ineligible to apply for MOSP roles and did not appoint her to the two roles for which she expressed interest, was Ms James' participation in James No 1.
8. The Tribunal also dismissed the complaint of discrimination on the ground of disability. In considering that complaint the Tribunal assumed, without deciding that "that Ms Moore, the key decision-maker involved in the disputed MOSP appointments, was aware that Ms James had been diagnosed by her GP as suffering from depression and anxiety".
9. The Tribunal held: 171 The objective features surrounding the two disputed appointments are detailed above. In short, Ms Moore considered that Ms James was ineligible to be appointed to a MOSP role because she was on the Transitional Plan. In addition, the people appointed to those roles, Ms Kos and Mr Jackson, were in the Grade 9/10 talent pool. Ms Moore had worked with Ms Kos who, in her opinion, had demonstrated that she was an "accomplished S/SAPO". By May 2017 when Mr Jackson was appointed, Ms Moore held concerns about the manner in which Ms James had interacted with her, Dr Martin and other staff. 172 We are not persuaded that Ms Moore's treatment of Ms James was less favourable than the treatment she probably would have afforded a hypothetical S/SAPO who did not have, or was not thought by Ms Moore to have, depression and anxiety, in circumstances not materially different to those of Ms James.

The nature and scope of internal appeals

1. By virtue of s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel.
2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
3. The principles applicable to the grant of leave to appeal were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] - [84].
4. At [84] the Appeal Panel held: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Grounds of Appeal

1. The appellant filed her Notice of Appeal on 2 June 2021, within the time period for the filing of an internal appeal set out in rule 25(4)(c) of the Civil and Administrative Tribunal Rules. We note that the respondent did not maintain a submission, included in its written submissions, that the appellant required an extension of time for filing the appeal.
2. In an attachment to her Notice of Appeal the appellant set out six grounds for her appeal: a. That the timeline of events throughout the findings were at points in time were inaccurate which impacted greatly on the findings. Events that were said to have happened at certain points in time could not have happened because the timeframe of events had not progressed that far. This impacting the findings in a number of allegations and the Applicant says would have provided a different context to her Allegations had the timeframes been correct. b. That the Tribunal did not take into account some of the facts of the matter as provided in the evidence submitted in doing so, the findings were based upon some inaccurate facts. c. Some of the findings (Allegation 1 in point) were integral to the other Allegations and that then affected the outcomes of the entire proceedings. d. Not enough weight was placed on some of the material presented in evidence (such as the Applicant's replies to the Affidavits of the Respondent's employees) which described multiple discrepancies in their statements with evidence provided. e. That the evidence provided at Hearing contradicted evidence given by those witnesses in their own Affidavits. f. That the Tribunal did not place enough weight on the Tribunal's findings in the first proceedings which therefore had contradictions between the findings of both proceedings.
3. We observe that the above grounds lack specificity. Inaccuracies and inconsistencies in the findings of the Tribunal, and the failure to take evidence into account, are alleged without any indication of the substance of the relevant complaints.
4. The appellant set out more detail in her written submissions and, having regard to the fact that the appellant was self-represented, we have taken the appellant's written submissions as identifying the issues which the appellant sought to raise.
5. Additionally, the appellant sought to rely upon new evidence which was not before the Tribunal, consisting of documents explaining for the benefit of employees of the respondent the process to be followed when a complaint is lodged regarding occupational health and safety. The appellant explained that she had not been able to present that evidence at the hearing because she had not had access to the respondent's internal network at that time. The appellant acknowledged that she had been aware of the existence of the documents at the time of the hearing.
6. It is appropriate to note at once that we are not persuaded that the new evidence should be admitted.
7. The principles applicable to the receipt of new evidence in internal appeals in the Tribunal have been canvassed in a number of decisions of Appeal Panels: See Yuen v Thom [2016] NSWCATAP 243 at [14] - [22]; Lettau v Artwork Transport Pty Ltd [2017] NSWCATAP 14 at [21] - [33]; Ros v Commissioner of Police [2020] NSWCATAP 70 at [27] - [43]; and Lauron v Michael [2021] NSWCATAP 120 at [21] - [32].
8. It is clear from those authorities that it is not appropriate to admit, on an internal appeal, evidence which was not put before the Tribunal at first instance, which the appellant could, with reasonable diligence, have obtained and tendered at the first instance hearing. As the appellant acknowledged, she was aware of the existence of the relevant document at the time of the hearing. It cannot be said that the document was not reasonably available to the appellant at the time of the hearing.
9. The appellant also made the assertion: That the way the respondent and its representatives conducted their case (both at the hearing and with relevant conflicts of interest) did not provide the Applicant with the required "fairness" as required by the respondent as a Model Litigant. This resulted in findings that were against the weight of evidence because the Applicant found herself in a situation where she was concerned for her mental health and that she found it difficult to the concentrate on the tasks at hand. This in particular related to the Applicant having an emotional breakdown at the end of the third day. This was despite the Tribunal member's best efforts to curtail the way the Respondent was conducting its case against a self-represented litigant within the constraints placed upon them by being required to be neutral and unbiased in the proceedings.
10. We take the appellant to be raising by that statement the ground that she had been denied procedural fairness in the way the hearing was conducted.
11. The denial of procedural fairness would be an error of law. The remaining grounds identified by the appellant do not raise any error of law and the appellant requires leave to appeal on those grounds.
12. At the hearing of the appeal, the Appeal Panel explained to the appellant the limitations on her rights of appeal imposed by s 80 of the NCAT Act and outlined the categories of questions of law as set out in Prendergast.
13. The appellant did not seek to submit that any of the grounds of appeal which we have reproduced at [21] above raised a question of law. The appellant, as we understood her position, accepted that she needed the leave of the Appeal Panel to rely on those grounds.

Procedural Fairness

1. Before considering the grounds listed at [21] above, it is convenient to address the issue of procedural fairness.
2. The appellant's complaint of denial of procedural fairness does not rely upon any failure on the part of the Tribunal to treat her fairly or permit her an opportunity to be heard. Rather, the appellant complains that the respondent did not conduct itself as a "model litigant" and thereby placed her at a disadvantage.
3. In ZDB v The University of Newcastle [2017] NSWCATAP 70 at [107] the Appeal Panel addressed the obligations of the Tribunal in relation to an unrepresented litigant: The principles concerning the assistance a Court, or tribunal, is required to give a self-represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91]: "… In Bauskis v Liew [2013] NSWCA 297 at [67]-[70] (Gleeson JA; Beazley P and Barrett JA agreeing), the following propositions which emerge from those authorities were identified. First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]-[53]. Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."
4. The appellant's complaints regarding the manner in which the respondent had conducted the proceedings before the Tribunal, as outlined in her written submissions, appeared to be: 1. Failing to ensure witnesses had documents before them during her cross-examination (the hearing was conducted remotely by reason of the COVID-19 pandemic); 2. Making objections to her questions which put her off her line of questioning and confused her; 3. Sending a settlement letter at a critical point in the appellant's cross-examination of the respondent's witnesses; 4. Forwarding a list of objections to the appellant's witness statements on the first morning of the proceedings; 5. Adopting a confrontational approach to cross-examination of the appellant.
5. The appellant did not point to any respect in which she suggested the Tribunal should have proceeded differently in respect of any of the above matters. Rather, it is apparent from the transcript of the hearing that the Tribunal gave the appellant every opportunity to present her case.
6. In particular, the Tribunal sought to ensure that the respondent did provide to its witnesses a copy of any documents which the appellant indicated that she wished to put to them during cross-examination. The appellant's difficulties arose from the fact that she could not identify all such documents in advance.
7. The Full Federal Court held in Scott v Handley [1999] FCA 404: [43] The second respondent is, as we have noted, an officer of the Commonwealth. As such he properly is to be expected to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect - and where there has been a lapse therefrom, to exact - from the Commonwealth and from its officers and agencies. The spirit of this "model litigant" responsibility, now long enshrined in a policy document of the Commonwealth, is perhaps best captured in the observations of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342: "I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken." [44] Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government
8. However, the obligations of the respondent as a model litigant did not extend so far as to require it not to take a robust approach to the defence of the appellant's claim. As Whitlam J held in Brandon v Commonwealth [2005] FCA 109 at [11]: While the Commonwealth is no doubt a behemoth of sorts, it is not obliged to fight with one hand behind its back in proceedings. It has the same rights as any other litigant notwithstanding it assumes for itself, quite properly, the role of a model litigant.
9. That proposition is equally applicable to the State of NSW and its agencies.
10. We are not persuaded that any conduct of the respondent or its legal representatives failed to comply with the respondent's obligations as a model litigant. We note that, other than the matters we have discussed above, the appellant did not point to any specific provision or part of the model litigant policy which she asserted had not been complied with. We do not accept that the appellant was in any way denied procedural fairness.

Other grounds

1. We turn to consider the grounds raised by the appellant which we have set out at [21] above. As we have observed, none of those grounds raises a question of law and the appellant requires the leave of the Appeal Panel to rely upon them. Consistently with the principles outlined in Collins v Urban, the appellant must do more than merely show that the decision of the Tribunal was arguably wrong or that there is a bona fide challenge to a finding of fact.
2. In oral submissions before the Appeal Panel, the appellant clarified that the main ground upon which she challenged the Tribunal's findings was that the decision to place her on a transitional plan was made on the ground that she had taken action under the Anti-Discrimination Act. The appellant submitted that all other conduct of which she complained flowed from the decision to place her on a transitional plan.
3. As we have recorded above, the Tribunal found that the placement of the appellant upon a transitional plan was a detriment to the appellant. However, the Tribunal also found (at [106] - [107]) that the appellant had not established that her placement on a transitional plan was "on the ground of" the fact that she had pursued proceedings in the Tribunal, stating that: "the available material does not support the inference being drawn that one of the real, genuine or true reasons Dr Martin placed Ms James on the Transitional Plan was because of her participation in the NCAT proceedings".
4. That was a finding of fact which was clearly founded upon the Tribunal's acceptance of the denial by Dr Martin that the appellant had been placed on the transitional plan by reason of the NCAT proceedings.
5. Such findings of credit should not be interfered with on appeal unless we are satisfied that they were inconsistent with, or glaringly improbable having regard to, incontrovertible evidence: Fox v Percy (2003) 214 CLR 118.
6. The appellant submitted at the hearing that the inference that the imposition of the transitional plan was on the ground of the appellant's having taken proceedings in the Tribunal was "irresistible".
7. However, the appellant's arguments relied solely upon what the appellant suggested were discrepancies between Dr Martin's affidavits and her oral evidence, and between her oral evidence given at the two hearings into the appellant's complaints. These asserted discrepancies were not raised with Dr Martin during her evidence at the hearing of her further complaint. Fairness would have required that Dr Martin be given an opportunity to explain or refute any such discrepancies in her evidence. In the absence of such an opportunity having been given, it cannot be said that any discrepancies, even if established (which we need not determine), must lead irresistibly to the conclusion that Dr Martin's evidence was incorrect.
8. More particularly, even if it be accepted that Dr Martin's evidence was inconsistent, that does not lead irresistibly to the inference that the imposition of the transitional plan was on the ground of the appellant's having pursued proceedings under the Anti-Discrimination Act.
9. Beyond her submissions concerning the credibility of Dr Martin, the appellant's written submissions assert a failure to attribute sufficient weight to particular evidence and take issue with various factual findings. We are not persuaded that any of the factual findings could be said to be glaringly improbable or inconsistent with incontrovertible evidence. Nor, to the extent that such findings were not made in reliance upon findings with respect to credit, has it been established that such findings were "wrong" (Edwards v Noble (1971) 125 CLR 296 at [304]). It has not been established that, by failing to afford any relevant fact or circumstance the "weight" to which it was entitled, which only the primary decision-maker could do, the Tribunal at first instance reached a decision which was "plainly wrong" (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, at [10]).
10. With respect to the Appellant, at their highest, her complaints establish that the Tribunal at first instance may have reached a different decision. As the authorities have consistently accepted, that cannot enliven appellate intervention. An appellant needs to demonstrate error of the kind identified in the authorities to which we have referred.
11. We are not persuaded that the appellant has established any basis for the grant of leave to appeal, which will accordingly be refused.
12. To the extent that the appeal raised a question of law, the appeal will be dismissed.
13. The respondent asked that the Appeal Panel reserve the question of costs. Pursuant to s 60 of the NCAT Act, special circumstances are necessary before we can make an order for costs. We will make directions for the filing of submissions concerning costs. Our orders are: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Within 14 days of the date of publication of this Decision the respondent may file submissions seeking an order in relation to the costs of the appeal. Such submissions should address the question whether the application can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act. 4. If the respondent files submissions pursuant to Order 3 the appellant may file submissions in response within a further 14 days. Such submissions should address the question whether the application can be dealt with on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2022