Sebastian v ADT & 2 Ors

Supreme Court of NSW|2007-04-30|Before: Young CJ, Harrison J

Background 3 Mr Sebastian was employed by Skilled Engineering Ltd as a railway hand signaller. He failed a colour vision test. On 11 December 2003 Mr Sebastian that he was unable to work until his employer received a status to work from Rail Infrastructure Corporation. He lodged three complaints before the Anti-Discrimination Board. These complaints were referred to the Administrative Decisions Tribunal (Equal Employment Division) (the Tribunal). 4 On 14 December 2004 the matter came before the Tribunal. For some of the time on that day Mr Sebastian was legally represented (by Mr Siva through the Bar's pro bono scheme) and the matter proceeded to mediation. At 4.00pm on 14 December, the Tribunal Member was informed that a case conference had settled the complaints and that an agreement had been signed. Written "Principles of Agreement (Ex A, Red Folder, p 13) was prepared and signed. It was signed by "Belinda Henry, Railcorp" and Joseph Sebastian by Marianne R Beck. Under Ms Beck's signature appears the notation "Marianne Beck acting on behalf of Joseph Sebastian". 5 The solicitors for the defendants prepared a draft Deed of Release to which was forwarded to Mr Sebastian. It was never signed by him. Ms Beck contacted the Tribunal to re-list Mr Sebastian's complaints because she no longer regarded them as being settled. 6 On 5 December 2005 the Tribunal delivered judgment and dismissed all proceedings. The Tribunal identified the principles of agreement as coming within the second category of cases identified in Masters v Cameron (1954) 91 CLR 353 at 360. Masters has been helpfully summarised in Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 at [55] where Young CJ in Eq recapitulates the three categories as: "1. Where the parties have reached final agreement on the terms of their contract and agree to be immediately bound but wish to restate those terms in a fuller or more precise way in a formal document;

Where the parties have reached final agreement on all the terms and intend not to depart in any way from them but the performance of some part of the contract is made conditional on the execution of a formal contract;

Where the parties intend there not to be a concluded contract unless and until a formal document is executed." 7 In categories (1) and (2) the parties are bound at the time they reach agreement. In category (3) the parties are not bound by the agreement. 8 The Tribunal decided at [94]: "The respondents are entitled to orders that the three complaints be dismissed because Mr Sebastian entered into a binding agreement on 14 December 2004 to discontinue his legal proceedings in return for the payment of a sum of money. According to Ms Ronalds SC the respondents are ready and willing to pay the settlement sum and they accept that any orders of the Tribunal dismissing the complaints must be contingent upon proof that the monies have been paid."

And at [105]: In this case there were no good reasons to set aside the agreement reached on 14 December 2004. The parties must be bound by their agreement. Whilst the Tribunal is not aware of all the considerations which the parties may have taken into account when agreeing upon the settlement sum, that sum is a very reasonable settlement figure in a case of this nature. 9 On 5 January 2006 the plaintiff appealed to the Appeal Panel of the Tribunal. The Appeal Panel made a decision under s 102 of the Administrative Decisions Tribunal Act 1997 (NSW) which is a summary provision of the Act. The Appeal Panel decided that the decision of the Tribunal was an interlocutory one. 10 At [38] the Appeal Panel stated: " Should leave be granted?

38 Each of the factors we identified at [11] and [12] as being relevant to the issue of whether leave should be granted can now be addressed. Our examination of the grounds of the appeal do not persuade us that the Tribunal's decision is attended with sufficient doubt to warrant its reconsideration. We have already found that substantial injustice would not result if leave were refused, even if the Tribunal's decision is wrong. In view of those findings, the fact that the Tribunal's decision concerns Mr Sebastian's substantive interests, as opposed to matters of practice and procedure, is not sufficient to satisfy us that leave should be granted. Leave to appeal is refused." 11 Ms Beck who has appeared with the plaintiff spoke on his behalf. This Court asked what role Ms Beck was to play for him and the plaintiff replied that she was to speak on his behalf. Ms Beck has appeared for the plaintiff throughout his various complaints to the Anti Discrimination Tribunal and the ADT. She read verbatim for a great deal of time from a red book (Ex A) behind the yellow divider. There is 66 varying points of law largely taken from legislation and cases. 12 At [50] the Appeal Panel observed that Mr Sebastian was hampered by the fact that Ms Beck was not legally qualified, assisted in appearing and presenting a hopeless appeal, and provided unsound advice as to the course of action that should be followed. Ms Beck adopted the same approach before this Court as she did before the Tribunal. For example, she submitted that the Appeal Panel erred because they considered that the ADT had stated that it did not have the jurisdiction to consider Contracts Review Act deficiencies. Regrettably, she did not heed the comments of the Appeal Panel. At that stage the Appeal Panel felt that Ms Beck's conduct fell short of that of an "officious intermeddler".

Appeal to this Court 13 Section 119(1) of the Administrative Decisions Tribunal Act 1997 (NSW) (the Act) provides that a party to proceedings before an Appeal Panel of the Tribunal may appeal to a Supreme Court on a question of law. 14 Section 119 (1A) reads: "(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court: (a) an interlocutory decision,

(b) a decision made with the consent of the parties,

(c) a decision as to costs." 15 The defendants submitted that the decision of the Appeal Panel was an interlocutory one and as such the plaintiff requires leave to appeal and cannot appeal as of right. The defendant referred to Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246. 16 In Wickstead v Browne (1992) 30 NSWLR 1 the Court of Appeal stated: "When the appeal was called on, the Court drew attention to the need for leave to appeal since the orders for summary dismisal were interlocutory. Mr Spender QC submitted that the orders were final but we are satisfied on binding authority that they were interlocutory and that leave to appeal was required: see Hall v Nominal Defendant (1966) 117 CLR 423 at 440 per Taylor J who referred to English authority directly in point dating from 1890 and Tampion v Anderson (1973) 48 ALJR 11 at 12; 3 ALR 414 at 415-417, a decision of the Privy Council. The point was in truth unarguable." 17 Unfortunately, none of the plaintiff's grounds of appeal address the issue as to whether the decision of the appeal panel was an interlocutory decision, or a final determination of the matter. For reasons that will become apparent later in the judgment, it is my view that it does not matter whether the decision being appealed was an interlocutory or final determination of the matter because the appeal is incompetent. 18 While the type of relief sought in the summons is wide ranging it does not fall within this Court's jurisdiction. Section 120(2) provides that this Court may make orders affirming or setting aside the decision and/or an order remitting the case to be heard and decided again, either with or without the hearing of further evidence. Hence, this Court is not able to make sure that no contracts contained provisions to disregard a person's obligations under the statute, laws and policies that are put in place to protect citizens. Nor is this Court empowered to make an order that the plaintiff be paid for his lost wages, lost opportunities in career advancement, lost superannuation, harrassment, intimidation and false reporting. 19 As I understand it, the primary oral argument raised by the plaintiff was that the Appeal Panel erred by finding that the Administrative Decisions Tribunal was correct in applying the second category of the test in Masters. In the present case, the parties signed an agreement which included a number of terms. The payment of the settlement sum was conditional on the execution of a deed. I agree with the reasoning of the Appeal Panel. 20 Another concern of the plaintiff is that the Principles of Agreement signed between the parties on 14 December 2004 was signed by Ms Belinda Henry and after the signature the words "Railcorp" appear. The plaintiff has submitted that Ms Henry signed the document on behalf of Railcorp, and thus the agreement did not bind the other defendants. 21 Ms Beck discussed in some detail the law of contract and agency. She stated that alteration of documents after signature render the document void. She discussed the effect of forcibly requiring a party to sign a contract, fraudulent misrepresentation and the duty of corporations not to mislead or deceive. She referred to s 185 of the Crimes Act 1900 in relation to inducing persons by fraud to execute instruments, which is clearly of no relevance in these proceedings. 22 I have closely read the decision of the Appeal Panel, and have considered all of Ms Beck's arguments for the plaintiff. It is difficult to determine where various arguments fall within the seven stated grounds of appeal. But my careful reading of the judgment does not allow this Court to interfere with the Appeal Panel's decision. The Appeal Panel had jurisdiction to decide the issue it did. It allowed Mr Sebastian and the defendants to make comprehensive submissions before it so that they were afforded procedural fairness. There was no unreasonableness afforded by the Appeal Panel. There is no bias, nor bad faith. I cannot find where the Appeal Panel failed to take into account relevant considerations. In my view, be it an application for leave to appeal or an appeal itself, the appeal is incompetent. The appeal is dismissed. The summons filed 3 October 2006 is dismissed. 23 Finally, at the commencement of the hearing, the plaintiff sought to have a notice of motion seeking summary judgment determined. The basis for seeking such an order was that the defendants had not filed a defence nor affidavits. Defences are not required to be filed. I dismissed the notice of motion. 24 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(1) The plaintiff's notice of motion filed 27 April 2007 is dismissed.

(2) The decision of the Appeal Panel dated 4 September 2006 is affirmed.

(5) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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Administrative Decisions Tribunal Act 1997(NSW)

CITATION : Sebastian v ADT & 2 Ors [2007] NSWSC 437

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 CASES CITED : Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 Masters v Cameron (1954) 91 CLR 353 Wickstead v Browne (1992) 30 NSWLR 1

LOWER COURT MEDIUM NEUTRAL CITATION : [2006] NSWADTAP 44

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