Z v University of A & ors (No 8) [2004] NSWADT 100

CITATION: Z v University of A & ors (No 8) [2004] NSWADT 100 DIVISION: Equal Opportunity Division APPLICANT Z FIRST RESPONDENT PARTIES: University of A SECOND RESPONDENT D THIRD RESPONDENT Ms B FILE NUMBER: 001001 HEARING DATES: 26-30/08/2002, 20-21/03/2003, 24-26/03/2003, 05-06/06/2003 SUBMISSIONS CLOSED: 12/05/2003 DATE OF DECISION: 05/26/2004

BEFORE: Goode P - Judicial Member; Clayton S - Non Judicial Member; McDonald O - Non Judicial Member APPLICATION: Contempt of Tribunal MATTER FOR DECISION: Contempt of Tribunal Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Crimes Act 1900 Z v University of A, Dr D and B (No. 7) [2004] NSWADT 81 CASES CITED: Keeley v Brooking (1978) 143 CLR 162 R v D & E Marinkovic (1996) EOC 92-841 APPLICANT REPRESENTATION: In person RESPONDENTS J Oakley, barrister ORDERS: 1. Contempt application dismissed; 2. The Respondents' application for costs is listed for case conference on 3 June 2004.

REASONS FOR DECISION Background 1 On 29 April 2004 the Tribunal dismissed a complaint made by the Applicant that the Respondents had breached the Anti-Discrimination Act 1977: see Z v University of A& Ors (No, 7) [2004] NSWADT 81. At paragraph 8 of the decision we noted that the Applicant had sought a ruling that the Second Respondent, Dr D, had committed perjury on 3 separate occasions when giving his evidence and that his conduct constituted contempt. We found that there was no substance in the Applicant's claims and indicated that we would deliver a separate decision outlining our reasons. 2 The Applicant first raised the present matter in a letter to the Registrar of the Tribunal dated 27 November 2002. He described it as 'an application for contempt' and requested that it be dealt with by the Tribunal on an ex parte basis. The Tribunal declined to deal with the matter ex parte and by letter dated 1 October 2002, the Applicant was invited to raise the matter when the hearing resumed. He did not do so. He did not advise the Registrar of the Tribunal that he wished to pursue the matter until August the following year. By letter dated 22 August 2003, he provided further material to support his application. Allegations of Perjury 3 The Applicant maintains that Dr D knowingly gave false evidence to the Tribunal on the following occasions: (1) He gave false evidence that he was not the honours co-ordinator in the second half of 1996. (2) He gave false evidence that he assisted the Applicant with his thesis. (3) He gave false evidence that he did not know who was his (Dr D's) supervisor or the requirements of his (Dr D's) supervision. 4 The Applicant submits that by knowingly giving false evidence to the Tribunal, Dr D committed perjury within the meaning of s 327 of the Crimes Act 1900. Contempt of Tribunal 5 The Applicant submits that Dr D's conduct constitutes contempt. He asks the Tribunal to report Dr D's conduct to the Supreme Court pursuant to s 131 (1) (j) of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). The Legislative Framework Crimes Act 1900 (NSW) 6 Section 327 of the Crimes Act 1900 (NSW) provides: (1) Any person who or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for10 years. (2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it. (3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement. (4) The question of whether any matter is material to a proceeding is a question of law. Administrative Decisions Tribunal Act 1997 7 Section 131 of the Tribunal Act provides: (1) The Tribunal may report the following matters to the Supreme Court: (a) if a person fails to attend in obedience to a summons after having been served with a summons to attend before the Tribunal as a witness, or (b) if a person fails to produce any document or other thing in the person's custody or control that the person is required by a summons to produce after having been served with a summons to attend before the Tribunal, or (c) if a person refuses or otherwise fails to answer any question that is put by the Tribunal after being called or examined as a witness before the Tribunal, or (d) if a person wilfully threatens or insults: (i) a member, assessor or officer of the Tribunal, or (ii) any witness or person summoned to attend before the Tribunal, or (iii) a practising legal practitioner or other person authorised to appear before the Tribunal, or (e) if a person misbehaves himself or herself before the Tribunal, or (f) if a person obstructs or attempts to obstruct the Tribunal, a member of the Tribunal or a person acting with the authority of the Tribunal in the exercise of any lawful function, or (h) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal or any of the contents of a document produced at a hearing that the Tribunal has ordered not to be published, or (i) if a person publishes, or permits or allows to be published, any evidence given before the Tribunal at a hearing held in private or any of the contents of a document produced at a hearing held in private, except to an officer of the Tribunal or as permitted by the Tribunal or by the regulations, or (j) if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court. (2) If the Tribunal reports a matter to the Supreme Court under subsection (1), the Court may deal with the matter as if it were a contempt of the Court. However, a person is not liable to be punished for contempt under this subsection if the person establishes that there was a reasonable excuse for the act or omission concerned. (3) Subsection (1) (i) does not apply to an officer of the Tribunal in relation to evidence or contents of documents published to other officers or to members of the Tribunal. 8 Section 132 of the Tribunal Act provides: (1) An act or omission may be punished as contempt of the Tribunal even though it could be punished as an offence. (2) An act or omission may be punished as an offence even though it could be punished as a contempt of the Tribunal. (3) If an act or omission constitutes both an offence and a contempt of the Tribunal, the offender is not liable to be punished twice. 9 It is clear that the Tribunal does not have the power to determine the issue of contempt itself. Section 131 (1) enables the Tribunal to report certain matters to the Supreme Court. These matters include conduct which would constitute contempt if the Tribunal were a court of law. 10 In general terms, conduct amounting to contempt in the face of the court is an act or (in limited circumstances) an omission in or near a courtroom which interferes with, or has a tendency to interfere with, the course of justice by obstructing, interrupting or disrupting court proceedings. 11 Perjury is the making of a false statement on oath in connection with judicial proceedings concerning a matter which is material to the proceedings, knowing the statement to be false or not believing it to be true. 12 The relationship between perjury and contempt in the face of the court was discussed by the High Court in Keeley v Brooking (1978) 143 CLR 162, in particular by Chief Justice Barwick (as he then was) at pp 169-170: …If it could be concluded beyond all reasonable doubt that the false swearing was with the actual or inevitable intent or consequence of frustrating or obstructing the proceedings, the party or witness could be dealt with for contempt of the tribunal. But that intent or inevitable consequence would differentiate what I might call mere perjury from contempt. The contempt would lie in the obstruction or frustration of the proceedings actually intended or necessarily consequential. However, as I have indicated, a case of contempt by false swearing must be relatively rare. In general, such false swearing will result in the party or witness being liable to prosecution for perjury. The facts of the present case illustrate the relationship of what I have called mere perjury and contempt in the face of the court. It was the false assertion of inability to recollect as a means of avoiding answering questions put to the applicant which constituted the contempt. He had thus refused to answer and had thereby obstructed or frustrated the trial. Having regard to the nature of the questions not answered and their relationship to the indictment, the obstruction or frustration was obvious. The contempt was not merely in the false swearing but in the obstruction or frustration of the trial by the unavailability of the matters which, the assertion to the contrary being false, the applicant could recollect… The Parties Submissions 13 In relation to the present case, the Applicant appears to be submitting that by knowingly giving false evidence to the Tribunal, Dr D committed perjury and that it thereby follows that he should be reported to the Supreme Court for contempt pursuant to s 131(1) (j). This conclusion is not justified. Before reporting the matter to the Supreme Court for contempt pursuant to this subsection, we would need to be satisfied that Dr D knowingly gave false evidence to the Tribunal and that as a consequence the proceedings were frustrated or obstructed. Alternatively, it may be appropriate to report the matter pursuant to s 131 (1) (g). 14 In his written submissions, the Applicant relies on the decision of the Equal Opportunity Tribunal in R v D & E Marinkovic (1996) EOC 92-841. In that case the Tribunal found that by giving false evidence, Mr Marinkovic attempted to deceive the Tribunal. The Tribunal indicated that it would refer the papers to the Director of Public Prosecutions to consider whether a prosecution for perjury was appropriate. The Tribunal stated: More seriously, the Tribunal finds that he attempted to deceive the Tribunal in the evidence which he gave to the Tribunal on 22 July 1996. Before he gave that evidence, a warning was issued by the Tribunal to Mr Marinkovic as to the significance to giving evidence on oath. The Tribunal finds that Mr Marinkovic has lied to the Tribunal to secure a benefit for himself, namely the delay of these proceedings, which he achieved, at considerable expense to the community as a result of the hearing dates being vacated and at considerable distress and expense to the Complainant and his legal representatives. Mr Marinkovic was warned by the Tribunal that if an adverse finding was made against him on this point, the Tribunal would refer the papers to the Director of Public Prosecutions to consider whether a prosecution for perjury was appropriate and the Tribunal believes it is appropriate now to adopt this course. The community expects that persons appearing or named as parties in proceedings before this Tribunal, whether as Complainant or Respondent, will not embark on a wilful course of action which will lead to undue expense and distress, such as would appear to be the case here, and that they will conduct themselves honestly. The integrity of the Tribunal and its ability to operate will be jeopardised if litigants are allowed to behave in a manner which the Tribunal believes may be found to be in contempt. The Tribunal has no power however in this area, other than the power of referral which it accordingly adopts. 15 The above case was decided before the enactment of the Tribunal Act. At the time there was no comparable provision in existence enabling the Tribunal to report the matter to the Supreme Court. 16 The Second Respondent submits that the allegations of perjury are manifestly baseless and that, in any event, they do not constitute proof of obstruction or frustration of the inquiry. We agree. We consider the allegations in turn below. The Tribunal's Findings (1) Allegation that Dr D gave false evidence that he was not the honours co-ordinator in the second half of 1996 17 Dr D gave evidence that to the best of his recollection, he was not the honours co-ordinator in the second half of 1996. This evidence was contrary to that given by the Applicant. He said that Dr D was the honours co-ordinator for the entire year. In our principal decision, Z v University of A &Ors (No. 7) [2004] NSWADT 81, we determined the issue in the Applicant's favour and stated: The Applicant said that Dr D was the honours coordinator throughout the whole of 1996. Dr D said that to the best of his recollection, he was only the honours coordinator for the first half of the year. There was considerable cross-examination on this issue. Suffice to say, the evidence conflicted. We are prepared to accept that he was the co-ordinator for the full year. This was Professor E's recollection. [at 69] 18 Contrary to the Applicant's assertion, Dr D did not expressly deny that he was the honours co-ordinator in the second half of 1996. When it was put to him that he was the honours co-ordinator for the entire year, he said: I disagree. It's my impression that I was honours coordinator for the first six months only of 1996 at which point I believe Ed Wilson took over. I took his job for the first six months because he was on leave. [T 30 August 2002 at p 499] 19 In our principal decision, we determined that nothing turned on whether Dr D was the honours co-ordinator for the entire year because Dr D was not under an obligation to assist the Applicant with his thesis. We stated: The Respondents submit that whether Dr D was or was not the honours co-ordinator for the full year, he had no obligation to assist the Applicant with his thesis. We accept this submission. It is consistent with Professor E's evidence that it was the supervisor's duty to assist a candidate with the preparation of his or her thesis. Dr D was not one of the Applicant's supervisors. [at 69] 20 While the evidence suggests that Dr D's recollection on this point was not accurate, there is no evidence that he knowingly gave false evidence to the Tribunal. We do not accept the Applicant's submission that Dr D advised the Reserve Bank that he had been the honours co-ordinator for the entire year. In fact the contents of Dr D's application for employment with the Reserve Bank are entirely consistent with the evidence he gave to the Tribunal. The document, dated 19 0ctober 1999, states: Over the period 1995-1998 I have also assisted in being the F Departments honours coordinator (I was the honours coordinator in the first session of 1996)… (2) Allegation that Dr D gave false evidence that he assisted the Applicant with his thesis 21 Dr D gave evidence that he voluntarily assisted the Applicant with his honours thesis. The Applicant maintains that this evidence is false and that had Dr D assisted him, he (the Applicant) would have acknowledged the assistance in his thesis. In our principal decision we stated that in contrast to the Applicant's evidence, Dr D gave his evidence in a straightforward, credible and frank manner and that with one exception, where there was a conflict between the Applicant's evidence and Dr D's evidence, we preferred Dr D's evidence. The one exception was the issue relating to the period of time that Dr D was the honours co-ordinator. 22 The Applicant did not specify which particular passage of evidence he relies upon to show that Dr D gave false evidence that he had assisted him with his thesis. We assume he relies on the following cross-examination of Dr D: A: … You helped the complainant during his course work component. Did you help the complainant during his thesis component, as well? Dr D: Yes, I did. A: Was that extensive help? Dr D: Depends on how you define extensive. Thirty hours. A: So, you're saying that 30 hours was solely on the – what proportion of that 30 hours was in relation to his thesis? Dr D: I would have thought 15 to 20 hours. … A: I refer to the – so, you would say that you had contributed a significant amount to the complainant's thesis? Would you say that? Dr D: I wouldn't say that directly. The complainant – if the complainant came to me with a question I answered the question. Whether that answer was taken and used in the complainant's thesis is something that I wouldn't know about. [T 30 August 2002 at pp 510-511] 23 There is no reliable evidence to contradict the evidence given by Dr D. We are satisfied that he gave a truthful account of the assistance he gave the Applicant. The fact that the Applicant chose not to specifically acknowledge Dr D in his thesis does not prove that Dr D never gave him any assistance. (3) Allegation that Dr D gave false evidence that he did not know who was his supervisor or the requirements of his supervision 24 Dr D gave evidence that although his progress was monitored by the Head of the F Department, Professor E, his day to day work was not formally supervised by anyone. He said he did not have a direct supervisor. Relying on the Universities and Post Compulsory Academic Conditions Award 1995, the Applicant submits that Dr D must have been aware that Professor E was his supervisor. Clause 7 of the Schedule to the Award relevantly provides: (a) Each academic shall have a nominated supervisor, and shall be advised in writing of the name and position of the nominated supervisor. (b) Supervisors shall provide academic and administrative leadership and are responsible for monitoring the performance of academics and for providing assistance to academics whose performance is assessed as requiring improvement… (c) The procedures set out in this clause are designed to provide a mechanism to assess the performance of academic staff. The primary purpose of this process is to provide assistance to any academic staff member whose performance is assessed as requiring improvement. (d) The supervisor shall be the head of the academic unit in which the academic is employed… 25 The Applicant's submissions fail to appreciate the distinction between day to day supervision and the supervision provided by the Head of the Department. There is nothing in Dr D's evidence to suggest that he was endeavouring to mislead the Tribunal. While he did not say that Professor E was his nominated 'supervisor', it is clear from the answers he gave in cross-examination that he was aware that Professor E was the person who was responsible for monitoring his performance. Dr D's evidence on this point is consistent with the following evidence given by Professor E: Oakley: Professor E, you were the head of the department, that has been established. In relation to Dr D during his employment as a lecturer with the department, how would you describe your role in terms of seniority with respect to him? Professor E: Well, as head of department – I mean I suppose in a line management sense he would report to me. I was responsible for his annual career evaluation form – career planning and in terms of the general duties of overseeing as a department member. Oakley: Did you supervise his work? Professor E: It is a funny term to use for academic employment. I mean there is a lot of autonomy in academic employment. There were aspects of his work, like all lecturers, that I would oversee in the sense of he course outline which myself and a small committee would oversee exam papers. I mean there is a number of things like that yes, I suppose is supervision but in general there is a fair degree of autonomy of academic staff. [T 20 March 2003 at p 54] 26 Dr D also gave evidence that he could not remember having an annual career development review. The Applicant submits that Dr D was not being truthful when he said this. Relying on the University of A (Academic Staff) Enterprise Agreement, 1996 to 1999, he submits that it was a requirement of Dr D's supervision that he have a career development review on an annual basis. Clause 34 of the Agreement relevantly provides: 34.1 The existing annual development review will be replaced by a new career development record. 34.2 The career development record will be maintained by the staff member and their supervisor… 27 We are satisfied that Dr D was not endeavouring to mislead the Tribunal when he said he could nor remember having an annual career development interview. When questioned further in cross-examination, he said: I had several interviews with many members of department or meetings. Whether those meetings or one of those meetings was called an annual career development interview, I don't know. It's possible. [T 30 August 2002 at p 491] ORDERS 28 The Tribunal makes the following orders: (1) The contempt application is dismissed. (2) The Respondents' application for costs is listed for a case conference on 3 June 2004.