The plaintiff's amended summons filed 13 December 2018 was heard on Thursday, 28 November 2019. The plaintiff appeared in person and the defendants were represented by counsel. The summons purports to be an appeal as of right from the Civil and Administrative Tribunal but has been treated by the defendant as an application for leave to appeal, pursuant to s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW), from a decision of the Appeal Panel of the Tribunal handed down on 29 November 2018: Liang v University of Technology Sydney [2018] NSWCATAP 285. As provided in s 83(1) the plaintiff may only appeal to this Court by leave on a question of law.
The first defendant is the University of Technology Sydney. In February 2015 the plaintiff undertook a five-day course offered by the University's School of Electrical and Data Engineering. The fee for the course was $1300. It was conducted by the University in conjunction with Cisco Systems Inc, a California-based multinational corporation that supplies and installs data networking systems and technology. Any participant in the course who completed it successfully would receive accreditation as a Cisco Certified Network Associate ("CCNA"). The course was entitled the Cisco CCNA 1 Instructors Course.
Before the Tribunal Member who heard the application at first instance, Ms S Thode, the plaintiff claimed that adequate tuition was not provided, that misrepresentations were made to her and that she was discriminated against and defamed. The alleged misrepresentations related to the manner in which the plaintiff's knowledge and skills would be assessed at the end of the course. She alleged that the basis of assessment applied to her was different from the basis of which she had been informed at the outset of the course and that she was unfairly failed.
The second and third defendants named in the plaintiff's amended summons were also respondents in the Tribunal. The second defendant, Mr John Colville, is a coordinator and lecturer engaged by the University on a sessional basis. He holds a Master of Science degree that was awarded for a thesis in computing. Mr Colville has taught data communications at the University for over 30 years and he has instructed in Cisco Networking courses since 2000. Since 2011 Mr Colville has been a trainer of other prospective Cisco instructors. He and the third defendant, Mr Max Hendriks, were the instructors for the plaintiff's course.
At the end of the five days of instruction the plaintiff and the eight other participants in the course were assessed. Three of the components of assessment were as follows: an online examination administered by Cisco, a "hands-on" evaluation administered by instructors at the University (referred to as a Skills Based Assessment or SBA) and a written examination, again administered by the instructors. The Tribunal at first instance accepted Mr Colville's evidence that the plaintiff failed all three of these components when they were administered on Friday, 13 February 2015. The Tribunal Member also found, on the basis of Mr Colville's evidence, that the University permitted the plaintiff to re-sit the assessments on Monday, 16 February 2015. However, upon re-sitting the SBA component she scored only 63% whereas the pass level was 80%. The other two assessments were not re-administered because, having failed the SBA, the plaintiff could not pass overall.
The plaintiff contended before the Tribunal Member that the 80% pass level was "fabricated" purely to prevent her from obtaining accreditation in respect of the course. She alleged that an arbitrary one hour time constraint was imposed on her SBA test and that she was wrongly not permitted to use a "packet tracer", which is apparently some kind of aid to the hands-on assessment. The plaintiff also alleged that there was an error in the written examination paper, as a result of which she asserted that she should have been compensated with a mark of 100%.
The Tribunal Member did not find any of these allegations established on the evidence. All of them were questions of fact as to how the plaintiff's assessments were administered and as to whether the marking process departed from what the plaintiff had been told regarding the mode of assessment when she commenced the course. The Tribunal Member was also not satisfied that there was any deficiency in the quality of instruction provided. The Member recognised, correctly, that the Tribunal had no jurisdiction to determine the plaintiff's claims for damages in defamation or for relief in relation to discrimination on grounds of gender or race. Those grievances had been partially articulated by the plaintiff but, in the absence of jurisdiction, the Member dismissed them.
The Tribunal Member's decision was handed down on 14 June 2018. On 13 July 2018 the plaintiff filed an appeal to the Panel pursuant to s 80 of the Civil and Administrative Tribunal Act. By force of s 80(2)(b) that appeal was "as of right on any question of law, or with leave of the Appeal Panel, on any other grounds". In due course the appeal was listed to be heard by the Panel on 14 November 2018.
Before the Appeal Panel hearing date was reached, on 8 October 2018 the plaintiff filed her summons in this Court purporting to commence an appeal from the first instance decision of the Tribunal Member. That summons was incompetent as there is no appeal to this Court from a first instance decision of a single Member of the Tribunal, by leave or otherwise. The only competent proceeding that could have been brought in this Court with respect to the first instance decision would have been an application for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). If relief had been sought under that section it would have been refused on the discretionary ground that a wider avenue of appeal was available, to the Appeal Panel of the Tribunal, pursuant to s 80.
On 13 November 2018 of plaintiff applied to this Court for an order staying the hearing of her appeal by the Panel: Liang v University of Technology Sydney [2018] NSWSC 1740. That application was dismissed. Thereafter the Appeal Panel proceeded with its hearing on 14 November 2018. In the course of that proceeding the plaintiff applied pursuant to s 54 of the Civil and Administrative Tribunal Act to have a question of law referred to this Court. At [29] the Panel recorded that the plaintiff had not identified any question of law arising in the appeal that ought to be so transferred. The plaintiff's application under s 54 was therefore rejected.
The Appeal Panel set out at [60] of their reasons the six purported appeal grounds that appeared in the plaintiff's notice of appeal. Those grounds and the Panel's reasons for rejecting each of them may be summarised as follows:
1. An order made prior to the first instance hearing, granting leave for the parties to be legally represented, was made without the plaintiff's consent - rejected because the plaintiff had ample notice of the application, the leave was granted in reasonable exercise of the discretion and there was no unfairness to the plaintiff as result of the University being represented.
2. If certain documents were produced under a summons to produce they might rebut some of the evidence adduced by the University at first instance - rejected because it did not amount to the identification of fresh evidence but merely asserted the possibility that such might exist.
3. The hearing at first instance was not completed - rejected because this was contrary to the fact as shown on the Tribunal's record of proceedings.
4. The Tribunal should not have accepted in evidence an email from Mr Hendriks to Mr Colville reporting on the plaintiff's inadequate result from re-sitting the SBA on 16 February 2016 (annexure JC-2) - rejected because this was no more than an assertion that the document was fabricated.
5. This was repetitive of ground (4).
6. The plaintiff contended that the Panel should "scrutinise" Ms Thode's "personal affiliation" to the University and to its legal representatives - rejected as not a proper ground of appeal.
I can see no error in the Panel's rejection of these six grounds. At [73]-[98] the Panel identified 13 further grounds that appeared from the plaintiff's submissions in support of the appeal. These were all described in the submissions to the Panel as errors of law. From the Panel's summary of these grounds it is apparent that they were expressed unclearly and, so far as meaningful contentions could be extracted from the submissions, the grounds were of a factual nature. At [101] the Panel refused leave to appeal in respect of any factual ground because no issue of principle or of public importance was raised and there was no reasonably clear indication of injustice nor any appearance that the Member at first instance had approached her fact-finding in an unorthodox manner or that was likely to have produced an unfair result.
The Appeal Panel's reasons disclose considerable patience and care in the Panel Members' endeavour to ascertain what the plaintiff intended by her appeal grounds and her arguments. The written materials submitted by the plaintiff on the internal appeal revealed her failure to grasp the concept of an appeal on a question of law and misconceptions on her part about what constitutes evidence, about the process of fact-finding and the burden of proof and about other fundamentals of the legal resolution of disputes. Despite the difficulties created by the plaintiff's lack of understanding and the consequent obscurity of her arguments, the Panel ascertained her complaints concerning the first instance decision to the extent that that was possible and determined each complaint without any error of law discernible on the face of their reasons.
The plaintiff's amended summons does not make clear that it is concerned only with the Appeal Panel's decision. Nor does it expressly state that leave of this Court is sought in order to appeal on a question of law. The amended summons makes misconceived references to s 75A of the Supreme Court Act and to an appeal from the first instance decision of Ms Thode. There is no legal basis for appeal from Ms Thode's decision and certainly no justification for administrative review, in circumstances where the decision of the Panel is now the operative determination within the Civil and Administrative Tribunal. At the hearing the defendants consented to the amended summons being dealt with on the construction most favourable to the plaintiff, namely as an application for leave to appeal the Panel's decision pursuant to s 83(1) of the Civil and Administrative Tribunal Act.
The first task in dealing with the case as an application for leave under s 83(1) is to identify the question or questions of law for which leave is sought. The amended summons does not identify any question of law. The first section of the document entitled "Details of Appeal" consists of 81 paragraphs over 19 pages. There is a wide distribution throughout that section of the phrases "error of law" and "question of law". However the context in which these phrases appear shows that they are invariably used inappropriately. On a liberal reading of the "Details of Appeal", using best endeavours to attribute meaning to the plaintiff's often confused and incoherent expression, I am not able to find any appellable question of law that is connected with or that arises from the Appeal Panel's decision.
The same result follows from review of a further section of the amended summons headed "Appeal Grounds", consisting of 86 paragraphs over 15 pages. I have examined that section closely, as the apparently logical place to look for any question of law that might be articulated as the basis of the leave application. During the oral argument I also asked the plaintiff more than once to identify the question or questions of law for which she seeks leave. The plaintiff's answers were unresponsive and difficult to follow. Her answers did not disclose anything that could be recognised as a question of law arising from the Appeal Panel's decision. Again in the "Appeal Grounds" section the phrases "error of law" and "question of law" are used frequently but always in relation to complaints that are of a factual and evidentiary nature or in reference to legal points that do not arise out of the Appeal Panel's decision.
A few examples from the "Appeal Grounds" section will sufficiently illustrate the misconceptions that underlie the plaintiff's application for leave. In the following extracts, the original syntax and expression have been retained:
1(b) The case raises important issues regarding the Australian Consumer Law and/or the common law right of access to justice. If the decision was wrong, the consequences for the criminal justice system will be serious.
1(c) The error of law in the decision was identified where the member has wrongly accepted those false or misleading information, documents and statements, which have been knowingly provided to this case by the respondents and their representative.
2 The question of law whether the civil and/or criminal penalty could be imposed to those people have provided false or misleading information, statements and documents to this case in breaching [various sections of the Crimes Act 1900 (NSW) and other statutes cited by the plaintiff in this ground].
4 NCAT does not have jurisdiction in malicious prosecution, or defamation, discrimination claims, to impose a civil and/or criminal penalty to those people who have breached Crimes Act 1900 and to appeal any decision of an Appeal Panel. Therefore, plaintiff seeks grant for an appeal at the Supreme Court.
9 The evidence confirms that an error of law was in the NCAT decision, which has been erroneously decided was identified that the member had accepted both false or misleading document (email "JC-2") and statements […] In the respondent's Submission and Affidavit of Mr Colville. The error of law was in the decision.
85 It is a question of law whether those NCAT decisions has breached [20-100] Directors etc cheating or defrauding […].
A number of the purported grounds simply assert that "the member failed to apply correct law to this case", without specifying what legal provision or principle was applied and what alternative provision or principle should have been applied. A recurring theme in the grounds is the assertion that the Member at first instance should not have accepted as authentic the email from Mr Hendriks of 16 February 2015, annexure JC-2. No error in the application of the law of evidence is identified. The frequent references to this item of evidence are simply assertions that the email was a fabrication and that it should not have been admitted.
The plaintiff's application fails because no question of law arising out of the Appeal Panel's decision and material to that decision has been identified. There is therefore no ground in respect of which leave could be granted under s 83(1) of the Civil and Administrative Tribunal Act. The summons will be dismissed and there is no reason why costs should not follow the event.
The costs of the plaintiff's unsuccessful stay application to this Court on 13 November 2018 were reserved at the time of that application being dealt with. In light of the subsequent course of proceedings before the Appeal Panel and in this Court it can now be seen that there is no reason why the costs of that application should not also follow the event. An order to that effect will be made.
On 23 July 2019 the plaintiff sent by email to R A Hulme J's Associate a proposed notice of motion seeking 17 separate paragraphs of relief. This notice of motion has never been filed but the plaintiff sought to have it determined during the hearing of the amended summons on 28 November 2019. The plaintiff would have required the leave of the Court to have this document treated as having been filed and listed that day. During the hearing I reserved the question of whether leave should be granted until I could review the draft notice of motion carefully and ascertain whether there was anything in it that the plaintiff should be permitted to argue as part of the final hearing.
Paragraph 1 of the notice of motion seeks an order that it be heard as part of the final determination of proceedings. Paragraphs 2-4 are concerned with subpoenas that the plaintiff sought to issue and enforce. Those paragraphs and the subpoenas themselves are irrelevant to the disposition of the amended summons. Paragraph 5 seeks reversal of the Tribunal's costs orders but no grounds are stated and no application for leave is advanced. Paragraphs 6, 12, 13 and 14 seek the imposition of penalties upon Mr Colville, upon the recipients of her subpoenas and upon the University's solicitor. There is obviously no jurisdiction in the Court to impose penalties as part of the present proceedings. Paragraph 7 contains an argument rather than a head of relief. Paragraphs 8-11 are concerned with the costs of the amended summons.
Paragraph 15 of the notice of motion seeks an order that the Tribunal's files be transferred to this Court. This would be futile because the plaintiff's failure to identify a question of law in respect of which she seeks leave to appeal means that there is no occasion to examine the proceedings in the Tribunal to any greater extent than the outline I have given in these reasons. Paragraph 16 seeks an order suppressing the identity of the plaintiff. No justification has been shown for a suppression order. Paragraph 17 seeks a stay of any costs order in relation to the notice of motion pending determination of the amended summons. That claim has been overtaken by events as the Court has now determined to dismiss the amended summons.
For these reasons the orders of the Court will be as follows:
1. The plaintiff's application to move on the draft notice of motion emailed by her to the Associate to RA Hulme J on 23 July 2019 is refused.
2. The plaintiff's amended summons is dismissed.
3. The plaintiff is to pay the defendants' costs of the proceedings including the costs reserved of the plaintiff's application heard by Adamson J on 13 November 2018.
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Decision last updated: 04 December 2019