Appeal Panel - Internal CITATION: Razaghi v Director General, New South Wales Department of Health & Anor [2003] NSWADTAP 42 APPLICANT Asaad Razaghi PARTIES: FIRST RESPONDENT Director General, New South Wales Department of Health SECOND RESPONDENT New South Wales Medical Board FILE NUMBER: 029005 HEARING DATES: 21 May 2002 SUBMISSIONS CLOSED: 10/23/2002 DATE OF DECISION: 09/19/2003 Razaghi v Director General, New South Wales Department of Health & Anor [2002] NSWADT 4 DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President); Britton A - Judicial Member; McDonald O - Member CATCHWORDS: opportunity to be heard - statutory interpretation MATTER FOR DECISION: Pricipal FILE NUMBER UNDER APPEAL: 991070 DATE OF DECISION UNDER APPEAL: 02/01/2002 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Supreme Court Rules 1970 Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 Mayhew v A [1999] NSWADTAP 1 CASES CITED: Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8. Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 United Bond Fabrics v Roseman [2000] NSWADTAP 13 at [21]-[27] APPLICANT In Person REPRESENTATION: FIRST RESPONDENT C Ronalds, counsel SECOND RESPONDENT Ms Furness, counsel ORDERS: Appeal Dismissed REASONS FOR DECISION 1 This appeal arises out of a hearing before the Tribunal on 8 August 2001 which resulted in a decision on 1 February 2002 that complaints of discrimination on the ground of race referred by the President of the Anti-Discrimination Board (the President) as representative complaints on behalf of an organisation named "Australian Doctors Trained Overseas Association Inc" were to be dealt with as individual complaints by Asaad Razaghi. 2 In an earlier decision, Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115 The the Tribunal also dealt with applications under s 111 of the Anti Anti-Discrimination Act 1977 (the Act) by both of the Respondents and refused those applications. The substance of the complaints therefore remains to be determined. That is an important feature of the proceedings which assumes some prominence in the light of the Appellant's approach to this appeal. 3 In the Notice of Appeal, two alleged errors of law are identified by the Appellant. The first is that the Tribunal misconstrued the term "representative body" in s 87 of the Act, in that the Tribunal confined the term to an incorporated entity or an unincorporated entity registered under State or Federal legislation. The second alleged error is that the Tribunal failed to accord procedural fairness to the persons named in the initial complaint to the Board, other than Dr Razaghi, in that those persons were not given an opportunity to be heard on the question of the proper characterisation of the complaints, before the Tribunal took the decision to effectively exclude them from the ambit of the complaints. At the hearing of the appeal, the Appellant sought to enlarge this ground into an allegation of a denial of procedural fairness generally. The Appellant and the Respondents were allowed some further time to pursue this ground by way of written submissions. Those submissions closed on 23 October 2002. The Appellant also sought leave to extend the appeal to the merits. 4 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides that a party may appeal "on any question of law" and with the leave of the Appeal Panel, may extend [the appeal] to a review of the merits of the appealable decision." 5 It is well established that it is necessary for the Appellant to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. See generally: Mayhew v A [1999] NSWADTAP 1 and Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8. 6 Consistent with the application of these principles, the Appeal Panel determined that it would not have regard to that part of the material filed by the Appellant on 4 September 2002, which could only go to the merits, until an error of law by the Tribunal had been demonstrated. Ground One: Misconstruction of "Representative Body" 7 After noting that the President of the Anti Discrimination Board had characterised the complaints as complaints by a representative body on behalf of a named individual, that is, Dr Razaghi, the Tribunal goes on to say at para 29 of its decision of 1 February 2002, "it appears that Dr Razaghi supports this characterisation, with the rider that he asserts that ADTOA represents more than one named individual in these proceedings." 8 The Tribunal's ratio at para 30 proceeded along the following lines. Whilst the Tribunal has the power to determine its own procedure under s 73(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), it must nevertheless act according to law ; : Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. Rules of procedure in other civil jurisdictions, such as Part 11, rules 1A and 2 of the Supreme Court Rules 1970, govern the standing and appearance of corporations in proceedings before the courts. In the absence of analogous rules in this jurisdiction, the Tribunal should be guided by the requirements of higher jurisdictions in that regard, that is, the Tribunal should be satisfied that any proceedings commenced or maintained in the name of a corporation have been properly authorised by that corporation and that any named individual acting as the representative of the corporation has been authorised to act in that capacity by the corporation. Thus far, there is nothing surprising, remarkable or erroneous in such an observation. 9 It is critical to this ground of appeal to record here that the complaints were received by the President of the Anti Discrimination Board on 26 March 1999, by way of a letter signed by Dr Razaghi (Exhibit 1 before the Tribunal). The letterhead of that document was "Australian Doctors Trained Overseas Association Inc". Dr Razaghi is nominated in the letter as "National President". An address of 14 Florian Grove Oakhurst NSW appears next to his name. When referring the complaints to the Tribunal on 9 July 1999, the Acting President described the complainant as "Australian Doctors Trained Overseas Association Inc on behalf of Dr Asaad Razaghi". As noted above, at every stage of the proceedings in the Tribunal (including proceedings on 9 June 2000, 16 February 2001 and 12 June 2001) Dr Razaghi has affirmed the description of the complainant as an incorporated association. That is the status of the organisation described on the letterhead, which appears in a significant volume of material filed with the Board and in the Tribunal. 10 It is against this background that the Tribunal sought to refer to rules of court regulating the appearance and standing of corporations, that is, artificial persons. A moment's consideration of Part 11, rule 1A of the Supreme Court Rules 1970 will reveal the Court's interest in ensuring that an action maintained by a corporation is authorised by its Directors ; in the absence of an affidavit by a Director, affirming that he/she has the authority of the Board of Directors and acknowledging that he/she may be liable to pay some or all of the costs of the proceedings, a successful litigant and the Court may be left without any effective means of enforcement, against a corporation who is named as a party to the proceedings. 11 True it is, as the Appellant argues, that the definition of "representative body" in s 87 of the Act says nothing about registration of such a body under State or Federal legislation, but that is irrelevant for the purposes of this ground of appeal. Dr Razaghi did not argue that the body of which he is national president is an entirely different organisation from that which appears on the Australian Securities and Investments Commission (ASIC) register as "Australian Doctors Trained Overseas Association Inc". He argued that the register extract (Exhibit 2 before the Tribunal) was inaccurate (T/S of 8/8/01 at p15) and that the names of Directors appearing on that extract did not represent the true position. In other words, the issue before the Tribunal was not whether an incorporated association must appear on the ASIC register before it could meet the definition of "representative body", the issue wasbut rather, given that the complainant was an incorporated association, did Dr Razaghi have the authority of that incorporated association to prosecute the complaints ? 12 Exhibit 2 before the Tribunal is illuminating in this regard. The extract refers to previous registered offices, one of which was 14 Florian Grove, Oakhurst NSW, the Appellant's nominated address on Exhibit 1. According to the register, it ceased being a registered office on 15 May 1998. The names of the Directors are set out in the extract, Dr Razaghi's not being amongst them. Exhibit 3 before the Tribunal assists in explaining the appearance of the Appellant's address on Exhibit 2. The former is a letter, bearing the letterhead "Australian Doctors Trained Overseas Association Inc", and dated 6 August 2001. It is signed by Ron Pepper, CEO and includes the following:- Please be advised that this Association has no prior knowledge of, nor has it given consent to, nor has it participated in any legal action supposedly taken on its behalf by Dr Razaghi or any other individual at this time. We state categorically that Dr Razaghi is not an office holder of the ADTOA. He is not a member of the ADTOA. He does not have any right to represent this association or use its name. ADTOA has no relationship with Dr Razaghi, either formally or informally. Dr Razaghi is a former member of the ADTOA. His relationship with ADTOA ended May 30 1998. 13 The reception of Exhibits 2 and 3 into evidence by the Tribunal effectively determined (in the absence of any other evidence) the Tribunal's decision. The Tribunal would have acted entirely perversely had it resisted the conclusion that Dr Razaghi was not authorised to pursue complaints referred to the Tribunal by the Acting President of the Board as complaints by the Australian Doctors Trained Overseas Association Incorporated. The fact that the Anti Anti-Discrimination Board accepted the complaints as such is noted by the Tribunal (para 32), but that assumption on the part of the Board cannot preserve the character of the complaints in the face of contradictory evidence. 14 There has been no error of law on the Part of the Tribunal in the construction of the term "representative body" and this ground of appeal fails. Ground Two : Denial of Procedural Fairness 15 The principles relating to the observance of the rules of natural justice and of procedural fairness in the context of tribunals, not bound by the rules of evidence, were the subject of comment in United Bond Fabrics v Roseman [2000] NSWADTAP 13 at [21]-[27].. It is appropriate that we set these out in full. In Ileris and Comcare [1999] AATA 647 a useful summary of the authorities and the principles to be extracted appear in the course of a decision, which examines the effect of s 33(1) of the AAT Act [Administrative Appeals Tribunal Act 1975]. In brief, they are :- A provision which allows a tribunal to disregard the formal rules of evidence dispenses with the need for material to meet strict criteria of admissibility before it becomes evidence in the proceedings. The material must nonetheless be relevant to the issues in the proceedings in the sense that it is capable of establishing the existence or non-existence of relevant facts. Shulver v Sherry (1992) 28 ALD 570; Casey v Repatriation Commission (1995) 39 ALD 34 Such a provision does not justify any departure from the requirement to observe procedural fairness or the rules of natural justice. Procedural fairness obliges the tribunal to give a fair opportunity to a party to meet material, adverse to that party's interests, which has been admitted into evidence, by testing that evidence in cross-examination and/or by calling evidence to contradict it and/or being heard in respect of it by way of submissions. Ex parte Bott (1933) 50 CLR 228; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; A & B v Director of Family Services [1996] ACTSC 48; Casey. Section 73(2) of the ADT Act represents a legislative statement of the above. A further extensive statement of the requirements of procedural fairness in the context of a tribunal not bound by the rules of evidence appears in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 4. In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him. It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits. 16 Turning firstly to the second ground of appeal as notified in the Notice of Appeal, it alleges a denial of procedural fairness to persons other than Dr Razaghi who were "named in the complaint". The first difficulty is that there were no other persons named in the complaint (see Exhibit 1 before the Tribunal). The complaint spoke in terms of "we", presumably the members of the ADTOA Inc, but no members other than Dr Razaghi were named. The second difficulty with this ground of appeal is that the transcript of the hearing before the Tribunal on 8 August 2001 records the following at p. 88:- REES: Well Dr Razaghi, what I'd like to do now, just for a minute, is I think, some of your colleagues are indicating that they might wish to say something. I will give you an opportunity to confer with your colleagues, if you wish. RAZAGHI: Yes, can I? REES: So, you can just have a minute or so to confer with them. RAZAGHI: Your Honour, my friend they have got something. REES: Yes, Dr Razaghi? RAZAGHI: What they are saying, in a way, that to – give me one-week time. I put it in chronological order the paperwork, this ones, so you understand what are the attempts we have done………………………… 17 This exchange occurred at the very end of a full day, well after the issue of the characterisation of the complaints had arisen. Exhibits 1, 2 and 3 were tendered within the first twenty pages of the transcript. There could have been no misapprehension on the part of Dr Razaghi's colleagues that the Tribunal was giving them an opportunity (through Dr Razaghi) to meet the matters raised by the Respondents in argument and by way of evidence. Strictly speaking, it was not incumbent on the Tribunal to do so, since the requirement of procedural fairness extends to the parties, not to other identified persons who may have an interest in the outcome of the proceedings. 18 As for the asserted denial of procedural fairness generally, a reading of the transcript discloses that the Tribunal afforded the Appellant ample opportunities to call his own evidence, test the evidence tendered by the Respondents, to object to that evidence and to meet the submissions made by the Respondents. The Appellant was advised that he could tender documents and make submissions (T/S pp 13, 14, 16, 18 and 19). The Appellant was asked on each occasion when documents were tendered whether he wished to object and when he indicated that he did, he was heard on the objection (T/S pp 12, 14-15, 17-20). The Appellant cross-examined Mr Dix, the only witness required by the Appellant for cross examination (T/S p 71). The Appellant made submissions at length (T/S pp 61-66, 80-89). The Appellant was advised of the basis of the hearing and of the limits of the evidence which the Tribunal could consider (T/S p 89). 19 The Panel can discern no basis for the second ground of appeal. Accordingly, the appeal is dismissed. 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. 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