Obieta v Australian College of Professionals Pty Ltd

Factual background 8Ms Obieta commenced classes on 11 October 2010. Her complaints of mistreatment start with the class in the Business Broking module held on Monday 29 November 2010 and conducted by Mr Compton. This is Incident 1. Her next complaints all relate to classes in the Trust Accounting module conducted by Mr Sullivan. These are incidents 2 to 9: Friday 3 December 2010, four incidents (Incidents 2-5); Monday 6 December, one incident (Incident 6'), Thursday 9 December, three incidents immediately after class (Incidents 7-9). Classes in the courses ended on Friday 10 December 2010, and the final examination was held on Monday 13 December 2010. 9As noted earlier, on 9 December 2010 after class Ms Obieta complained to Mr Sullivan over his conduct and alleged it was discriminatory. Mr Sullivan made the complaint known to the principal of the College, Mrs Sullivan. On 16 December Ms Obieta wrote to Mrs Sullivan setting out all her complaints. On 17 December 2010 Mrs Sullivan asked another teacher, Mr Horton (a qualified solicitor) to investigate the complaints and report back to her. The Tribunal noted in its reasons that the complaints included all those considered by it (incidents 1 to 9) and others not now relevant. He conducted interviews with Mr Compton, Mr Sullivan, other staff of the College, and three students including Ms Doueihi. He presented his report to Mrs Sullivan on 8 February 2011 finding that there was no evidence to support the allegations made by Ms Obieta in respect of Mr Sullivan and Mr Compton. She advised Ms Obieta of the findings on 28 February 2011. 10Separately there were exchanges between Ms Obieta and Mrs Sullivan over the procedures followed in relation to the conduct of the examinations, and the issuance of records of achievement and results. These circumstances provide the main basis for the victimisation complaint, and are not confined to a particular event in the way that each of the classroom-related complaints is presented. 11The Tribunal heard her case over six days in March, May and July 2013. At [19] of its reasons, the Tribunal summarised the issues for determination as: 19The issues for determination by the Tribunal may be summarised as follows. In respect of each allegation of race discrimination: whether the treatment occurred as alleged, if so, whether it occurred on the ground that Ms Obieta was a Filipino, or that she had a characteristic generally appertaining to, or imputed to, Filipinos, and if so, whether the treatment either subjected her to a detriment (including failure to respond appropriately to a learning environment permeated by racial harassment) or a denial or limitation of her access to any benefit provided by the respondent. In respect of each allegation of victimisation: whether the treatment subjected her to a detriment, and if so, whether it occurred on the ground that Ms Obieta had complained of discrimination to Mr Sullivan. 12In respect of each of the complaints the Tribunal was not satisfied that the treatment as alleged had occurred. Consequently Ms Obieta failed to establish a factual foundation that engaged the applicable provisions.

The Appeal 13Ms Obieta's right to appeal is governed by s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). An appeal is 'as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds' (s 80(2)(b)). 14Ms Obieta's notice of appeal, dated 5 March 2014, is highly detailed, 29 closely typed pages with about 900 words per page. It is divided into Grounds 1 (pages 1-4), 2 (pages 5-20), 3 (pages 20-24), 4 (pages 24-25) and 5 (pages 25-29). 15Grounds 1 and 2 concern the Tribunal's findings and rulings in relation to the incidents of alleged racial discrimination. Ground 3 concerns the Tribunal's findings and rulings in relation to the victimisation complaint. Ground 4 relates to an alleged omission in the Tribunal's consideration of her case (in particular, a claim for aggravated damages). Ground 5 relates to the Tribunal's decision to award costs against her. 16Ms Obieta applied in the notice of appeal for a stay of the costs order. This matter was listed for a hearing on 19 March 2014. She did not appear. The College's legal representatives attended. They referred to the history of the proceedings, its cost to the College and moved for the appeal to be summarily dismissed under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), because the appellant had 'failed to appear in the proceedings'. The application was granted. Cases dismissed on this ground may be the reinstated (s 55(2)). Ms Obieta applied for reinstatement. Directions were given for both parties to file submissions on that issue. The College opposed reinstatement. 17On 14 May 2014, her appeal was reinstated. The Appeal Panel, constituted by a presidential member, was not satisfied that she had, in fact, received the Registry notice of the hearing prior to 19 March 2014. The notice was dated 12 March 2014, there was no information as to when it was placed in the mail system. The Appeal Panel could not be satisfied that it had reached her in the ordinary course of the mail ahead of the date for hearing. The application for a stay of the costs order was not granted, in light of an indication by the College that it would not move to enforce the order ahead of the hearing of the appeal.

Scope of Appeal 18In her notice of appeal Ms Obieta marked 'No' in the box 'Are you asking for leave' which is preceded by the statement 'Unless you are appealing a final decision of the Tribunal only on a QUESTION OF LAW you require leave to appeal'. At the hearing on 14 May 2014 Ms Obieta was asked whether she intended to confine her appeal to questions of law, as the marking indicated. An explanation was given to her of the difference between an appeal confined to questions of law appeal and one where leave is also sought for an extension to consider 'other grounds' or the merits. She confirmed that she was only making a question of law only appeal. We have dealt with the appeal on that basis. 19In light of the extent of the submissions made by Ms Obieta in the body of the notice of appeal (of the order of 25,000 words), the directions made on 14 May 2014 limited the scope of filing of further material, and permitted the College to include in its Reply short submissions as to each of the five points of the Notice of Appeal (limited if possible to 2,000 words). 20The hearing of the appeal took place on 2 July 2014. 21The Appeal Panel has the ADB referral report and all the material considered by the Tribunal at the summary dismissal stage and the final hearing. There is no transcript of the proceedings. In addition we have the material filed in connection with the appeal. This comprises: the notice of appeal, the parties' submissions in connection with the reinstatement application, the respondent's formal Reply (6 June 2014), the appellant's authorities (25 June 2104), which included further submissions despite the Appeal Panel's direction made 14 May 2014, the respondent's list of authorities (25 June 2014), the appellant's supplementary authorities (2 July 2014), which also included submissions, a filing that also went beyond the scope of the directions.

Grounds 1 and 2 (the Racial Discrimination Complaints) 22These grounds relate to the dismissal of the racial discrimination complaints, with Ground 1 referring to the complaint relating to Mr Compton's conduct (Incident 1) and Ground 2 referring to the complaint relating to Mr Sullivan's conduct (Incidents 2 to 9). 23Incident 1 (Mr Compton) and Incidents 2 to 7 (Mr Sullivan) refer to events said to have occurred in the classroom. Incidents 8 and 9 refer to conversations with Mr Sullivan after class on 9 December 2010 (the two were referred to together as Incident 8 in the summary dismissal decision). Ms Obieta's version of events was disputed. The Tribunal heard evidence as to what occurred from Ms Obieta, Mr Compton, Mr Sullivan and Ms Doueihi (called by the College), a classmate of Ms Obieta, who was present on the occasion of Incidents 1 to 7. 24(We have had difficulty with clearly identifying the factual findings of the Tribunal because of the way it chose to organise its reasons. Instead of simply organising the material incident-by-incident in a chronological sequence, and dealing with all relevant evidence at each point and referring to the applicable law, it chose to follow the method of summarising the evidence of each witness and recording findings as to their evidence at the foot of the account of their evidence. The result is that findings are sometimes scattered about in the reasons, rather than gathered together.) 25We will set out (with some excisions) Ms Obieta's opening paragraph of Ground 1, in which she itemises the alleged errors of law in the Tribunal's reasoning. The same text is repeated in the first paragraph of Ground 2. The Tribunal Members made error in law in their decisions and reasons for decision in not applying the law or provisions of sections 7, 17 and 19 of the Anti-Discrimination Act 1977 (NSW), or failed to apply correctly the law or its provisions within its meanings in respect to the claims of the Appellant ... in Incident 1 .... . The Tribunal Members erred in law in their decisions and reasons in omitting or excluding the reasons for the decision of the Deputy President [in the summary dismissal decision] at paras [14] and [26] for race discrimination against [Mr Compton] in summary hearing. The Tribunal members erred in law in failing to legitimately draw an inference of race discrimination on the relevant facts or evidence or the case and circumstances, and sworn statements and testimonies of the respondent's witnesses in Incident 1, and the decisions and reasons of [the Deputy President] in summary hearing for race discrimination. The Tribunal Members' decisions and reasons for decision were against the weight of the evidence. The Tribunal Members' decisions and reasons and decisions were not fair and equitable. 26The material that follows after each Ground does not explain how the relevant law was misapplied given the findings of fact. 27Ms Obieta's appeal is misconceived insofar as it relies on the rulings made by the Tribunal on the summary dismissal application. It is clear law that a court or tribunal must only dismiss a case summarily, i.e. without full hearing, if, taken at their highest the facts as asserted by the applicant reveal not arguable case to which the respondent should answer. For fuller expositions of the principles, see, for example, the summary dismissal decision itself, Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; and Razaghi -v- Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]. 28The respondent is not called on to reply with evidence to the applicant's case at a summary dismissal hearing. At the full hearing the Tribunal had before it the evidence of the respondent's witnesses. It preferred their evidence in critical respects in relation to each of the incidents. 29The Tribunal accepted in the case of Incidents1 and 3 that there was conduct similar to that alleged by Ms Obieta. However it was not satisfied that crucial aspects of what was alleged had occurred (for example, in the case of Incident 1 Mr Compton in conducting the stand-up quiz had not confined his indications as to how was to sit down in the way suggested by Ms Obieta, and for example in the case of Incident 3 Mr Sullivan had spoken of hitting a person on the head with a baseball bat but the comment was not directed to Ms Obieta). In relation to the other incidents, it did not accept Ms Obieta's account, either declaring itself not to be satisfied on the balance of probabilities, or rejecting that any of the utterances attributed to Mr Sullivan had been made. On most matters, it preferred the evidence of the trainer, and gave significant weight on a number of disputed matters to the evidence of Ms Doueihi corroborating the trainers' accounts, and the corroboration afforded by the statements made by the trainers and Ms Doueihi in the interviews conducted by Mr Horton soon after the events in issue. 30In her submissions attached to each of the Grounds of the notice of appeal, Ms Obieta refers to evidence of hers, to parts of the evidence of the College's witnesses which she believes justified a different finding. 31A dispute with a finding of fact does not of itself raise a question of law. Nor is a tribunal of fact obliged in its reasons to recount and examine all of the evidence given by witnesses. There must be a defect affecting the reasoning process giving rise to a finding that is so great as to show that the Tribunal failed to discharge its duty to deal rationally with the evidence before it. 32There may be an error of law if, for example, its finding is based on no evidence, or no logically probative evidence, or it fails to have regard to critical evidence (see, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] per Allsop P, Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513 (Court of Appeal); or it makes an adverse finding without addressing significant uncontroverted evidence to the contrary: State Rail Authority of New South Wales v Earthline Constructions [1999] HCA 3; (1999) 160 ALR 588; (1999) 73 ALJR 306); or it relies on irrelevant evidence (House v R [1936] HCA 40; (1936) 55 CLR 499). 33Provided these boundaries are not infringed, the trier of fact is immune from appeal on error of law grounds in relation to its findings of fact. A submission that the trier of fact's findings are against the weight of the evidence does not raise a question of law: see, for example, Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381 (Bell J). 34In our view, the Tribunal did not err in any of the ways described in its handling of its fact finding responsibility. 35We will not deal with each of the findings in detail. By way of illustration, we will refer to the Tribunal's approach to Incident 1. As we see it, this was a very significant event from the viewpoint of Ms Obieta, and it may well have been a trigger event for Ms Obieta's perception of what followed in Mr Sullivan's classroom in the period from 3 December. 36At para [5] the Tribunal referred to Ms Obieta's amended points of claim, and set out her description there of incident 1, as follows: Incident 1: When taking the class on 29 November 2010, Mr Compton first asked students to introduce themselves. Ms Obieta told the class about her background. Mr Compton then conducted an 'in class' assessment. Mr Compton asked the entire class to stand up. He then asked questions and whoever gave the correct answer first could sit down. Ms Obieta says that regardless of whether the answers were right or wrong, Mr Compton allowed male and female students who answered a question to sit down. Although Ms Obieta gave correct answers, Mr Compton did not acknowledge that they were correct. Ms Obieta was left standing with the "bully male students". All male students except the leader of the "bully males" were told to sit down and Ms Obieta was left standing with the leader of the male bullies. Ms Obieta felt that something was not right and that Mr Compton had intentionally left her standing. Ms Obieta then sat down without being told she could do so. 37The Tribunal summarised Ms Obieta's evidence as follows: 23 She said that on 29 November 2010, she attended a class in Business Broking taken by Mr Compton (incident 1 above). He acknowledged and accepted answers to his question which were given by other students, inviting each to sit down as they gave their answer. He did not acknowledge her answers, or ask her to sit down. She remained standing with one male student, who she described as 'the leader of the bully boys'. It is common ground that there was a small group of unruly young males in this class. Though she did not describe the context of Ms Compton's activity, it is clear from other evidence considered below that he was conducting a quiz. In the section dealing with Mr Compton's evidence, the Tribunal concluded as follows: 43 ... Even accepting that Ms Obieta was not invited to sit, there is no evidence to support any contention that Mr Compton failure to acknowledge any answer or invite her to sit was intentional, or intended to belittle her. The Tribunal finds that highly unlikely. 44 Mr Compton's apparent concession to Mr Horton that he was aware that eventually two students remained standing, one of whom sat of their own accord, is consistent with the account of Ms Obieta in her letter, but does not cause the Tribunal to doubt that he was, and remains, blind. 45 His account generally was internally consistent, and given in a straightforward manner. Where he did not directly recall an event, he readily conceded that fact. The Tribunal accepts his evidence. In particular, it accepts that he was blind, that he had not met Ms Obieta before 29 November 2010, that he could not identify her voice, and was unaware as to whether she remained standing, even if he was aware that two students remained standing, one of whom sat of their own accord. His evidence as to his usual practice is largely consistent with Ms Obieta's recollection of the class exercise, and it is likely that such an exercise was conducted in class on 29 November 2010. It is also consistent with Ms Doueihi's recollection, except in certain respects considered below 46 From the evidence of Ms Doueihi (considered below) it does seem that Ms Obieta was not invited to sit, and therefore that she was left standing until she decided to sit of her own accord. However, we are not persuaded that any failure to invite Ms Obieta to sit was intentional on the part of Mr Compton. For the reasons given, it is likely that he was unaware she left standing. There is no evidence to support a finding that her race formed any part of the reason for his apparent failure to invite her to sit or acknowledge her answer. For those reasons, the allegation of race discrimination on 29 November 2010 is not made out. 38In the section dealing with Ms Doueihi's evidence, the Tribunal said: 69 She agreed that there were some young males in the classes who were disruptive. She said that Mr Compton and Mr Sullivan made jokes from time to time to "refocus the males students' attention and to get matters back on track so that the rest of the students could get through the course content." ... 72 In relation to incident 1, she recalled that on 29 November 2010, Mr Compton conducted an in-class quiz during the Business Broking module, in which all students were asked to stand, and then to sit on giving a correct answer. She said she had no recollection of his failing to acknowledge Ms Obieta's answers, of failing to ask her to sit down, or of her being left standing with a male student. She did, however, concede to Mr Horton: 'that Mr Compton did not accept some answers from Ms Obieta but he did that to others as well. She says he did not single out her or anyone else.' 73 This appears to mean that he did not invite Ms Obieta to sit down, despite her having answered some questions. That gives support to that aspect of Ms Obieta's account. 74 Ms Doueihi's understanding that students were asked to sit on giving a 'correct' answer is not entirely consistent with Mr Compton's recollection. His practice, he said, was to ask students to sit regardless of the correctness of their answer. On that issue Mr Compton's account is the more likely to be correct for a number of reasons: he would be expected to know his usual practice; it is consistent with his aim of engaging and energising the class rather than conducting an assessment; there is no evidence that he intended to depart from his practice; it seems likely he would remember if he did on a particular occasion; Ms Doueihi does not specifically deny that students were asked to sit even when giving a wrong answer; and on the first day of the course she was probably not in a position to assess the correctness of all answers. Ms Doueihi's evidence does not support Ms Obieta's account that she was deliberately ignored. 39It will be seen that the Tribunal accepted that Mr Compton had engaged in classroom exercise that started with all students being on their feet, questions being asked in a quiz like way, and students being asked to sit down as the exercise unfolded (but that request was not dependent on whether the answer was right or wrong) and that Ms Obieta was the only female left standing for some time along with several males, and finally she was left standing with one other student. He was then told to sit down. 40In our view the way it dealt with the evidence going to this event does not disclose any error of law so far as the legal principles that constrain the fact-finding process. 41There is one aspect of the reasons in para [46] that might raise a concern. The Tribunal said: There is no evidence to support a finding that her race formed any part of the reason for his apparent failure to invite her to sit or acknowledge her answer. 42It is well established, as Ms Obieta noted in her written submissions, that it is not necessary to prove a racist intent or a racist motive in order to succeed in a racial discrimination case, and the same principle applies to other areas of anti-discrimination law: see, for example, Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49; 103 ALR 513 at 520-1 per Mason CJ, Gaudron J, there dealing with Victorian legislation in similar terms to the NSW law under consideration here: It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of".' See also Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 160 ALR 489 (Weinberg J); appeal dismissed, State of Victoria v Macedonian Teachers Association of Victoria Inc (1999) 91 FCR 47 (FCFC); [1999] FCA 1287. 43While Waters was an indirect discrimination case, and not a direct discrimination case as here, its statement of the law is equally applicable to a case of the present kind. The 'material difference in treatment' must in some way be 'based on' the 'status or private life' of the complainant. It is sufficient to show that the conduct in issue gave rise to unlawful discrimination even though that possibility never crossed the mind of the perpetrator. 44We agree with the respondent's submission on this point, that the above statement of the Tribunal is not one that reveals any misunderstanding of the relevant law, but is merely responding to the way Ms Obieta formulated her case, as set out in the amended point of claim quoted earlier. Further, we note that the evidence did not establish that Mr Compton knew of Ms Obieta's race, or that she was in fact left standing. 45In relation to the case against Mr Sullivan, we have noted above that the Tribunal was either persuaded, on balance, or was satisfied entirely that the utterances attributed to him did not occur, with one exception. The exception was incident 3. The Tribunal was satisfied that words similar to those considered by Ms Obieta to be hostile to her were uttered, but they were not directed at her. 46We will not set out here the detail of the Tribunal's analysis of the evidence on these matters. As with its approach to Incident 1, the Tribunal considered Ms Obieta's evidence, the trainer's evidence (here Mr Sullivan's) and any other relevant evidence, most importantly the accounts given to the internal investigator, Mr Horton. 47In our view, no errors of law are revealed by the way it went about examining the evidence.

Ground 3 of the Notice of Appeal (the Victimisation Complaint) 48In relation to the victimisation complaint, the Tribunal heard evidence from Ms Obieta, Mrs Sullivan (the principal), Ms Fisher (a teacher with the College, knowledgeable in Ms Obieta's type of enrolment, and the certification procedures) and Mr Horton. 49The victimisation complaint refers to a number of events. Ms Obieta set out her version of these events out at paras 20 to 23 of the document headed 'amended points of claim' filed on 28 June 2013 at a time when the case was largely heard (five of the six days had been completed). The relevant paragraphs extend over four closely typed pages filed. The Tribunal did not summarise all of this detail in its decision, and we will not attempt to do that here. 50Her complaint of victimisation starts with what Mr Sullivan is alleged to have said to here in their discussion after the class of 9 December 2010. She reports him suggested that she not continue to attend the course. She considered that she was bound to attend the course, as her participation in the course was sponsored by the NSW government (under a productivity placements scheme aimed at disadvantaged students who were registered as job seekers and in receipt of Centrelink benefits). She considered that this comment constituted victimisation. 51She then referred in support of her complaint of victimisation to the way the College dealt with her after it became aware of her complaints of discrimination. She complained that the Student Assessment Outcomes (SAO) Acknowledgement form sent to her on 20 December 2010 failed to assess her final examination questions in the module, Property Management. She complained that she was not properly assessed in the Business Broking assessment in two aspects. She complained that the SAO did not cover Business Broking. 52She made similar complaints in relation to the contents of further SAOs issued to here, in that they lacked reference to five units of competency in the real estate course and one common unit of competency relating to business broking. She complained that the deficiencies in the documentation issued to her where only corrected by the College after the matter had reached the Tribunal at a case conference held in February 2012. 53She referred to other events that occurred while the case was before the Tribunal that she saw as an unfair attempt to compromise her complaint as about the inadequacy of the documentation of course outcomes. 54The Tribunal's examination of the evidence relating to the victimisation complaint is found at para [49] (Mr Horton's evidence that he was asked to mark Ms Obieta's trust account assignment, to avoid any concern that might arise by leaving it to the teacher, Mr Sullivan), at paras [50]-[66] (Ms Fisher's explanation of the courses that were undertaken by Ms Obieta, and the role of the NSW government scheme under which she was enrolled, her explanation of marking and assessment procedures, and the role and function of SAOs), and at [118]-[146] (the evidence of Mrs Sullivan, in relation to the administration of the assessments and the issuance of the results documentation). 55It will be seen that a large part of the Tribunal's reasons for decision were concerned with the complaint of victimisation. 56We set out below the main elements of the primary paragraph of Ground 3 of Ms Obieta's appeal ( we have made some excisions which do not affect the meaning) . The Tribunal Members made error of law in their decisions and reasons for their decisions for not applying the law or the provisions of s 50(1)(c) [of the ADA], or failed to apply correctly the relevant law or its provisions within its meanings in respect of the claims of the appellant on victimisation against Mr Sullivan and Mrs Sullivan ... The Tribunal members erred in law in omitting or excluding the other victimisation claims of the applicant from her amended points of claim which were dealt with and heard in the original proceedings or hearings in their decisions and reasons, and/or failed to include those claims correctly which were listed and included in the original points of claim filed on 28 March 2012, and dealt with at the summary dismissal hearing and not dismissed. The Tribunal Members erred in law in omitting and excluding the other victimisation claims of the applicant from their decisions and reasons in the applicant's amended points of claim filed on 28 June 2013. The Tribunal members erred in law in failing to legitimately draw adverse inferences of victimisation and detriments on the relevant facts or evidences of the case and circumstances, and sworn statements or testimonies of the respondent's witnesses in the above relevant incidents claimed in the applicant's original and amended points of claim in the original proceedings. The Tribunal Members' decisions and reasons for the decisions on victimisation claims were against the weight of the evidence. The Tribunal Members' decisions and reasons for decision were not fair and equitable. 57For reasons given above in relation to Grounds 1 and 2, no error of law is raised by the objections made above that the Tribunal's findings were against the weight of the evidence, or they were not fair and equitable. Similarly no error of law can arise simply because inferences preferred by the appellant were not adopted, if the process of reasoning otherwise complied with the usual standards in relation to adequacy of reasons. We are satisfied that the Tribunal's fact-finding process was not affected by error. 58The key point, as we see it raised by this Ground, is whether the Tribunal gave proper regard to the scope of the case presented by Ms Obieta, as limited by the summary dismissal decision. 59In our opinion, the Tribunal thoroughly examined the evidence relating to the three 'detriments' set as the boundary of the case by the summary dismissal decision: one, the reasons for the College (allegedly intentionally) not assessing her final examination questions in the Property Management module and in (allegedly intentionally) excluding the Property Management module from the list of modules assessed in the final examination; two, the College, (allegedly intentionally) not assessing Ms Obieta's Business Broking Module Assessment on two occasions and excluding her from the Business Broker Module Student Assessment Outcomes (SAO) document; and, three, the College (allegedly wrongly) failing to award the two qualifications which she successfully completed when Ms Obieta refused to sign the Student Assessment Outcomes document. 60We refer, in particular, to the findings in relation to Mrs Sullivan's evidence at [9] and [123]-[146]. The Tribunal found at [9] based on Mrs Sullivan's evidence that it was a requirement that the SAO document be signed by each student as a condition of passing the courses, and students who did so were awarded their qualification. The Tribunal found at [126] that the College would then issue certificates and transcripts to the effect a student had been assessed as competent in all subjects including the units of competency to which each subject related. The Tribunal was satisfied that the units of competency assessed, and which would be certified by the issue of certificates and transcripts, were those required by the licensing authority. The Tribunal observed: 'Ms Obieta had only to sign the forms to receive her certificates and transcripts, and thereby to be eligible for both licences.' 61At [129], the Tribunal said: 129There is no evidence that Ms Obieta's complaint formed any part of the reasons for the omission of Property Management from the SAO concerning the final examination. As it was the clear intention of the College to issue certificates and transcripts as to successful completion on signing the forms, it is highly unlikely that the omission was so motivated. For that reason, it cannot constitute victimisation. Mrs Sullivan did explain that it was omitted, not by error, but because she did not consider that the final examination examined that subject in any great detail, despite the presence of two or more questions relating to residential tenancies. From that evidence, we infer that it was her decision not to include the subject on the Final Examination SAO, and not an administrative oversight, as Ms Fisher had assumed. It was sufficient, for the purposes of obtaining a licence, that students be graded as competent in Property Management and its associated units of competency. Whether the College considered it appropriate to indicate that grade in Property Management should be indicated on one SAO or another was a matter for the College. As Mrs Sullivan indicated, the purpose of these acknowledgments was to satisfy an auditing officer that the students had in fact been assessed as competent in each relevant module. The issue of academic transcripts and certificates was sufficient to make them eligible for their licenses. We are not satisfied the forms were deficient, as alleged. 62It continued at [131]: 131Ms Obieta's refusal to sign the form has had the result that certificates and transcripts have not been issued. We are satisfied that they have not been issued for the sole reason that she has refused to sign the SAO acknowledgments. The fact that the applicant made a complaint formed no part of the respondent's reasons for declining to issue certificates and transcripts. 63The Tribunal went on to consider events that occurred in January 2011, and dealt in particular with the omission in the SAO form of a reference to the agency agreement component in the Sale Business Broking module. It was satisfied that this was due to an administrative mistake on the part of the relevant trainer, and that the College rectified the error. 64In her submissions Ms Obieta asserted that there were other events in the period to 23 March 2010 which should have been examined. 65At para [7] the Tribunal said in respect of the victimisation complaint: Attempts to widen the scope of the complaint at hearing were unsuccessful. The reasons are recorded in the transcript. 66We do not have a transcript covering these rulings. On the basis of the limits imposed by the summary dismissal decision and our examination of the material considered by the Tribunal in its reasons for decision, we are satisfied that the Tribunal dealt with the substance of Ms Obieta's victimisation complaint.

Ground 4 (Omission to consider part of Applicant's claim) 67The damages question only arises if there is a proven contravention. As we are satisfied that the Tribunal did not err in law in dismissing the case, this ground does not require consideration.

Ground 5 (the Costs Order) 68The case was filed and heard by the Administrative Decisions Tribunal, now abolished. The applicable law therefore was s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act) which provides, relevantly: 88 Costs (1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (I) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting 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) any other matter that the Tribunal considers relevant. 69The Tribunal dealt with the College's application at [148]-[178] of its reasons. The College's application referred, in particular, to two of the considerations specifically referred to in s 88(1A), i.e. conducting the proceedings vexatiously (a(iv)), and the relative strengths of the case ((c)). As another relevant matter (see (e)) the College's submissions referred to Ms Obieta's decision to decline to accept an offer made 26 November 2012 to settle the proceedings (payment of $5000 inclusive of interest and costs; plus provision of the SAO forms for both courses, with certificates and transcripts, in exchange for the usual releases). 70The Tribunal referred at [150] to Ms Obieta's case in reply. The first six points of the Tribunal's summary and the ninth point went to the fairness and adequacy of the main compromise offer and a related event that occurred at a settlement conference during the proceedings. The seventh and eighth points were that her case was bona fide and arguable, and that she was never invited to mediate. The ninth and tenth points were criticisms of the College's conduct - one, that it produced 'adverse documentation', causing her to have to investigate more issues and facts, and, two, that as a registered training organisation it must hold professional indemnity insurance. 71The Tribunal relied on the following matters in deciding that contrary to the usual rule and contrary to the usual practice in the anti-discrimination jurisdiction of the Tribunal (see, further, Rae v Commissioner of Police, New South Wales Police Force (EOD) [2011] NSWADTAP 30 at [7]), an order should be made:

• the complaints and their prosecution was vexatious;
• the way in which Ms Obieta chose to conduct the proceedings, and her failure to heed numerous warnings from the Tribunal;
• the prolongation of proceedings (from a case that might have taken two days to one that took six days); and
• while not all the complaints were without a tenable basis in fact or law, 'the relative strengths of the parties' claims could not have been more unequal' ([162]). 72The Tribunal then considered the submissions concerning the rejected compromise offer of 26 November 2012. The Tribunal did not accept Ms Obieta's submissions as to why the offer was not reasonable in the circumstances. It did not accept her other criticisms of the College's conduct of the proceedings. 73Excerpts follow from the primary paragraph of Ground 5 of Ms Obieta's notice of appeal: The Tribunal Member made error of law ... for not applying ... s 88(1) of the [ADT Act] ..., or failed to apply correctly the law ... within its meaning on 'fairness' in s 88(1A) ... in respect to their decision to make a costs order against the applicant. The Tribunal Members' decisions ... were against the weight of the evidence ... . The Tribunal members decisions... were not fair and equitable to make costs order against the Applicant or to depart from the ordinary course or general rule of the Tribunal. 74In her submissions Ms Obieta in effect re-argues the case that she put to the Tribunal on this issue. 75The costs discretion is a broad one. An appellate tribunal should not lightly interfere with the primary tribunal's decision. In our opinion, the Tribunal's exercise of discretion did not infringe the principles laid down in House v R, cited above, per Dixon, Evatt and McTiernan JJ: 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.' 76In our view, the Tribunal examined carefully the cases put by the College on costs and the case in reply put by Ms Obieta. It had regard to relevant considerations, and did not, for example, allow extraneous or irrelevant matters to guide or affect it. There was no failure to take account of a material consideration.

Respondent's Application for the Costs of the Appeal 77The College applied, in the event that the appeal was dismissed, for an order against Ms Obieta awarding it its costs of the appeal. Ms Obieta opposed any such order, for reasons similar to those advanced by her at first instance. The provision now applicable is s 60 of the NCAT Act, which provides relevantly: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (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. 78The exception ('special circumstances') is, arguably, narrower than the exception at s 88(1A) of the ADT Act ('fair to do so'). 79Ms Obieta's appeal was a weak one. The Tribunal at first instance was called on to consider nine separate incidents involving the classroom trainers, and then several events relating to the College's handling, mainly via the principal, of the complaints made by Ms Obieta over the certification process. The Tribunal dealt with the evidence in a comprehensive way. Ms Obieta's appeal sought to put in issue all aspects of the Tribunal's reasoning, requiring the College to make an 'all points' detailed reply. Ms Obieta's notice of appeal was of the order of 20,000 words plus. The directions made on 14 May 2014 did seek to contain the scale of the proceedings. 80So far as the factors listed in s 88(3) are concerned, we refer in particular to the following matters - 'the relative strength of the claims' made by the parties (s 88(3) (c)) and the lack of substance of the appeal (s 88(3)(e)). In the case of an unsuccessful appeal, we regard as a relevant matter (s 88(3)(f)) the fact that a costs order was made against the appellant at first instance. A successful respondent to an appeal who has been awarded costs at first instance has a strong claim to a costs award in relation to the appeal. The respondent has been exposed to a second round of litigation. 81It does not follow that because some factors to which s 88(3) are made out that a costs order should then follow. It remains necessary for the Tribunal to weigh whether those circumstances are sufficient to amount to 'special' circumstances that justify departing from the ordinary rule that each party bear their own costs. In this instance we are satisfied that the factors we have mentioned were of sufficient significance to justify a finding of special circumstances. Orders 1.Appeal dismissed. 2.Appellant to pay the respondent's costs of the appeal as agreed or assessed. Order to take effect 28 days after the date of this decision. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

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: 07 August 2014