Kitoko v Sydney Local Health District

Supreme Court of NSW|2018-08-29|Before: Lonergan J

Judgment

The plaintiff, Vangu Kitoko, brought a complaint to the Anti-Discrimination Board in May 2015 regarding the discriminatory way he says he was treated and discriminatory things said to him by a doctor in the employ of the defendant.
The complaint was referred to the Civil and Administrative Tribunal of New South Wales ("the Tribunal") on 26 February 2016 pursuant to s 93C(a) of the Anti-Discrimination Act 1977 (NSW) ("the Act").
The defendant applied to have the Tribunal proceedings dismissed under s 102 of the Act, on the basis that the complaint lacked substance and did not disclose a contravention of the Act. In the alternative, the defendant asked the Tribunal to dismiss the proceedings because of a significant delay in bringing the complaint.
The Tribunal heard the defendant's application on 1 February 2017, and published its decision and reasons on 27 June 2017. Mr Kitoko's complaint was dismissed under s 102 of the Act, relying on s 92(1)(a)(i)-(ii) of that Act, concluding that the complaint was frivolous, vexatious, misconceived or lacking in substance and that the conduct, even if proved, would not disclose a contravention of the provisions of the Act.
An appeal was lodged pursuant to s 80(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") to an Appeal Panel ("the Panel"). The Panel comprised a Principal Member K Rosser and Senior Member S Frost. In its reasons dated 6 February 2018, the Panel dismissed the appeal.
That appeal disposed of four grounds of appeal that are not dissimilar to the grounds raised before this Court in the Summons filed in March 2018.

Relevant principles

Section 83(1) of the NCAT Act provides the Court with the power to hear the plaintiff's appeal, with leave, on a question of law: 83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings
As stated by Wilson J in Symes v Mick Fabar Constructions Pty Ltd [2015] NSWSC 1922 at [11]-[12]: [11] The question of leave is dependent upon a number of factors. Ordinarily, an applicant for leave must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. Questions of finality are important, as are questions of proportionality, the latter of particular prominence here, where an issue as to costs before a Tribunal, proceedings before which are intended in part to restrain the costs of legal proceedings, could come to swamp the amount disputed in the original claim. [12] As a general statement, it is appropriate to grant leave to appeal only where issues of principle or questions of general public importance are involved, or where there appears to be an injustice which is reasonably clear: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.
Mr Kitoko also raised for consideration Article 14 of the International Covenant on Civil and Political Rights which states, amongst other things: "All persons shall be equal before the courts and tribunals."
Whilst Article 14 is dealing with determination of criminal charges against a person, the primary statement of equality before courts and tribunals is not a contentious one. Article 14(3)(e) also refers, in the context of criminal proceedings, to a person accused of a crime having a right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. It seems from the oral submissions made by Mr Kitoko that he relies upon this principle as underpinning Ground C of his appeal, in addition to his submissions more generally that the Panel was unjust in refusing him leave to cross-examine the defendant's witnesses, as well as, in his view, providing inadequate reasons for that decision.

Defendant's position with respect to whether a question of law is raised

The defendant properly accepted in its written submissions that a denial of procedural fairness can raise a question of law, and that whilst there was no specific written submission detailing the bases upon which the plaintiff asserted that leave to appeal should be granted, it does seem broadly that the plaintiff's grounds of appeal address perceived denial of procedural fairness.
There is also a specific allegation of collusion between Judicial Member Britton and the defendant's barrister then appearing on the Appeal Panel hearing, which would, if it were true, obviously be relevant to procedural fairness.

The grounds of appeal

Ground A complains that the Tribunal has shown partiality and injustice in the proceeding. In his affidavit, the plaintiff seems to rely on three specific events. First, that at a directions hearing, he was disadvantaged because he was only given two days to provide material, second, that he was not informed of a Tribunal hearing date that was subsequently adjourned, and third, that the judicial member on 1 February 2017 at the hearing "stopped the session for 10 minutes" and met with the respondent's barrister to "collude".
The defendant relied upon an affidavit of Mr Bridges-Webb, Solicitor. That affidavit states that the plaintiff was in fact given a timetable of some weeks to respond to material and was able to respond by 8 September, having been given a time limit to 9 September 2016.
Mr Bridges-Webb also states that whilst the plaintiff did not appear on a scheduled hearing date due to not having been notified, there was no injustice incurred by the postponement of the hearing date, as nothing proceeded in the plaintiff's absence. A new date was allocated and the matter proceeded on that day.
The allegation of collusion with then counsel for the defendant is denied. The defendant correctly describes the allegation as "a general (and serious) accusation without specific details".
A letter from the counsel in question is appended to the affidavit of Mr Bridges-Webb stating that interactions with the tribunal members on the day were limited to the oral submissions made in the course of the hearing in the Tribunal room with Mr Kitoko present. Mr Bridges-Webb was present for the hearing and he deposes to a recollection that counsel did not leave the hearing room at all during the progress of the hearing.
Mr Kitoko made some assertions during oral argument about this allegation. He said that he remained inside the hearing room, but that he "was sure" that counsel and the judicial member "talked". He denied that he had witnessed such an event.
Rather, he submitted that the change of barrister for the appeal hearing demonstrates a concern because in his view usually a barrister stays with a matter to the end. Mr Kitoko said that the first barrister was "a very competent barrister", and that changing "just suddenly like that, after pressure, after put allegation against her, that is signal to show that she can't be here professionally - she feels guilty to continue in the same case".
Having considered the evidence and submissions, I am of the view that the assertion that the barrister appearing for the defendant colluded with the judicial member is without foundation.
In respect of the other allegations of procedural unfairness, I reject that there was any injustice caused to Mr Kitoko in the circumstances. Ground A is not made out.
Ground B states that "The Tribunal and the Appeal Panel have shown injustice in refusing to consider any of the Plaintiff's evidences [sic] lodged with the complaint. Tribunal has further shown injustice in refusing to grant leave for the Plaintiff to submit further substantiated evidences [sic], without giving any reasons."
These issues were dealt with by the Appeal Panel at [27] of its Reasons. The evidence before the Appeal Panel was set out in [16]. I accept the submission of the defendant that the plaintiff's evidence was considered at its highest in the Tribunal hearing because the Tribunal was considering whether it was capable of supporting the factual allegations upon which the complaint was based and whether those allegations could disclose a contravention of the Act (Kitoko v Sydney Local Health District [2017] NSWCATAD 209 at [12]).
Refusal to allow additional allegations is at the Tribunal's discretion and is not a question of law. Accordingly, this ground of appeal is not made out.
Ground C, "The Tribunal and the Appeal Panel has shown partiality and injustice in refusing to give leave for the Plaintiff to cross-examine the defendant's witnesses, without giving any legal reasons," is also not made out.
The difficulty here is a procedural one. The defendant had not served any evidence from witnesses given the nature of the issue before the Tribunal was a legal issue regarding the Act. There was thus no basis or scope or need for any cross-examination. The Appeal Panel dealt with this in their reasons in paragraphs [36]-[37]. The complaint that there were no reasons given is not made out, as the reasons on this issue are clear and concisely explained in [36]-[37] of the Panel's decision.
Ground D, "The Tribunal and the Appeal Panel has finally shown partiality and injustice in giving a misleading or inaccurate representation of the Deponent's claim and evidences in the whole of the decision handed-down dated 27 June 2017 and 06 February 2018," appears on the face of it to be an attempt to ask this Court to carry out a merits review.
This ground was expanded upon by Mr Kitoko in oral submissions. The submission as I apprehend it is that in reading the decision of the Appeal Panel as a whole, he was of the opinion that there is no substance to the decision. There was a perceived "refusal" to allow the case to be fully ventilated and as a result the doctor was allowed to "hide".
I reject this argument. I accept the defendant's submission that both the Tribunal's first instance decision and the reasons of the Appeal Panel correctly summarise the plaintiff's evidence and demonstrate that it was considered. The reasons for the decision of the Panel are cogent and clear and accurately articulate the salient claim, the legislative test and the reasons for reaching its conclusion on the issues raised.

Decision

Having considered the merits of the proposed appeal and the principles which apply to the grant of leave, I am not persuaded that there is a sound basis for leave to be granted.
I refuse leave to appeal.

Orders 1. Leave to appeal is refused. 2. The plaintiff is to pay the defendant's costs.

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: 31 October 2018

Anti-Discrimination Act 1977(NSW)ss 92, 93C, 102

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