Appeal Panel - Internal CITATION: Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 APPELLANT PARTIES: Simon Margan RESPONDENT University of Technology, Sydney FILE NUMBER: 039045 HEARING DATES: 19/08/03 and 24/09/03 SUBMISSIONS CLOSED: 09/24/2003 DATE OF DECISION: 12/05/2003 Margan v University of Technology, Sydney [2003] NSWADT 133 DECISION UNDER APPEAL: BEFORE: Hennessy N - Magistrate (Acting President); Rice S - Judicial Member; Bolt M - Member CATCHWORDS: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - leave to extend to the merits - opportunity to be heard - relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 021097 DATE OF DECISION UNDER APPEAL: 06/05/2003 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Supreme Court Rules 1970 Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Karekar v Tafe Commission of New South Wales [2000] NSWADT 187Langley v Niland [1981] 2 NSWLR 104 McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 CASES CITED: Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 Pannizutti v Trask (1987) 10 NSWLR 531Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported) Rajski v Powell (1987) 11 NSWLR 522Spellson v George (1992) 26 NSWLR 666 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Wickstead v Browne (1992) 30 NSWLR 1 Z (No. 3) v University of A ([2001] NSWADT 138 revised - 16/04/2002) APPELLANT REPRESENTATION: In person RESPONDENT R Ennis, solicitor ORDERS: 1 The Tribunal's decision to dismiss the complaints relating to incidents (1), (2) and (3) of the appellant's complaint is set aside; 2 The Tribunal's decision to dismiss incident (4) of the appellant's complaint is affirmed; 3 The matter to the extent of the complaints relating to incidents (1), (2) and (3) is remitted to a differently constituted Tribunal for hearing Introduction 1 On 5 June 2003, the Tribunal dismissed a complaint of homosexuality discrimination lodged by Mr Margan against the University of Technology, Sydney (the University). The Tribunal dismissed the complaint under s 111(1) of the Anti-Discrimination Act 1977 (AD Act). That section states that: Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. 2 Mr Margan appealed to the Appeal Panel against the Tribunal's decision to dismiss the complaint. Jurisdiction 3 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. Mr Margan's application for leave to extend the appeal to the merits of the Tribunal's decision is dealt with below. Background 4 Mr Margan's complaint to the President of the Anti-Discrimination Board (ADB) contained allegations of discrimination on the grounds of homosexuality and victimisation under the AD Act. The President of the ADB declined his complaint under s 90(1) of the AD Act as "lacking in substance". A case conference was held on 27 September 2002 at which the Judicial Member requested that further material in support of the appellant's complaint be provided. The appellant provided further material to support his complaint in a document entitled "Reply to Lack of Substance Complaint". A further case conference was held on 29 November 2002 at which the University indicated that it would be making an application under s 111(1) of the AD Act for the complaint to be dismissed. The matter was listed for hearing to consider the s 111(1) application on 30 January 2003. However the hearing was adjourned because the appellant was attempting to obtain legal advice. The matter was finally heard on 3 April 2003. 5 In the hearing before the Tribunal Mr Margan agreed that a correct summary of his allegations was set out in a letter from the President of the ADB to Dr Fitzgerald, the Registrar of the University dated 3 April 2002. That summary states that: (1) On 16 February 2000, the registrar advised (the applicant) that his academic record would not be altered from a Master's to PhD to reflect the true nature of his enrolment. In this letter he was advised that he would not be given the possibility of enrolling in a PhD course. The reason given revolved around a computer incident in June 1999. He appears to be alleging that this is an example of victimisation arising from his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn. (2) On 16 June 2000, University of Technology (in its Council meeting) decided not to fund a special grant to the Organising Committee for a float in the 2001 Sydney Gay and Lesbian Mardi Gras. He alleges that the method used to arrive at this decision amounts to homosexual discrimination against himself in the area of education. (3) On 28 August 2000, proceedings were taken to exclude Mr Margan from study. He alleges this was a result of his earlier complaint of homosexual harassment against a lecturer, Dr Costa Conn. (4) On 16 August 2001, he was advised that he would not automatically be given the opportunity to appeal [from] a decision that effectively ended all possible avenues of his completing a PhD project at UTS. This effectively excluded him from study. He alleges this occurred because of his homosexuality and victimisation arising from his conflict with Dr Conn". 6 It is apparent from this summary that incidents (1) and (3) were complaints of victimisation under s 50 of the AD Act, incident (2) was a complaint of homosexual discrimination in education under s 49ZO of the AD Act and incident (4) was a complaint of homosexual discrimination and/or victimisation. Section 50 states that: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 7 Section 49ZO states that: (1) It is unlawful for an educational authority to discriminate against a person on the ground of homosexuality: (a) by refusing or failing to accept the person's application for admission as a student, or (b) in the terms on which it is prepared to admit the person as a student. (2) It is unlawful for an educational authority to discriminate against a student on the ground of homosexuality: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. (3) Nothing in this section applies to or in respect of a private educational authority. 8 Discrimination on the ground of homosexuality is defined in s 49ZG: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons. Meaning of s 111 9 A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." However, Hunt J added that the words "for any other reason" include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J's example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention. 10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is 'so obviously untenable that it cannot possibly succeed', 'manifestly groundless', 'so manifestly faulty that it does not admit of argument', one which 'the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which 'would involve useless expense' (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942. 11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of 'taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken 'at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred. 12 Mr Margan relied on the decision in Z (No. 3) v University of A ([2001] NSWADT 138 revised - 16/04/2002) which made a similar point. In the course of its decision, the Tribunal said, at [45]: The Tribunal is aware of the difficulties associated with establishing a case of unlawful discrimination in the absence of direct evidence. Often the primary source material from which inferences might properly be drawn to prove an applicant's case is in the possession of the respondent. Often too, the only mode of proof available to an applicant is to rely upon a concatenation of circumstances from which an inference might properly be drawn of unlawful discrimination : see the remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626. 13 Wilson J in Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 at p.78,900 rejected the onerous test of "no real prospect of success." His Honour said at "A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance." That test has been adopted by the Federal Court in Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54). 14 However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J's approach in Assal because in those cases the "complainants had had their day before the Commission." In McGlade, the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that "there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end." We agree with and adopt Ormiston JA's approach. 15 The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party's request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant's version of events, the application would most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal's jurisdiction – one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act – then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost. Grounds of Appeal 16 The Appeal Panel asked Mr Margan to outline his grounds for appeal. He identified two grounds. The first was that the Tribunal erred by failing to allow him to file witness statements in reply to the application to dismiss his complaint. Mr Margan said that the Tribunal could not assess his evidence "at its highest" without taking into consideration evidence from his witnesses. He said that the Tribunal had refused to allow him to present that evidence. Mr Margan's second ground of appeal was that the Tribunal erred in its reasoning at paragraphs 16, 17 and 32 of the decision, where the Tribunal said: The applicant makes two new submissions in his Reply in that "Elements within the University have prevented me from obtaining a PhD qualification". He contends that:- "no other student at UTS or any other university who has received a 1st Class or upper second has been put into a Master program instead of a PhD .. It was made clear to me by Assoc Prof. Baker and Dr Costa Conn after they had used their influence to change my records that they had done this because of my sexuality. This was conveyed to me during the numerous times they had verbally relayed the reasons for opposing my entry to the PhD program (Document "N")." There is no evidence of the first of these two allegations (that his treatment is unique). It would have been simple to issue a Summons for production of student records to prove such a statement. Even if it were true, it does not prove that the applicant is treated uniquely because he is homosexual. The decisive factor is, in the Tribunal's view, whether the allegations are directly relevant to the complaints. As the complaints are formulated by the Anti-Discrimination Board (and were accepted by the applicant as accurate summaries), the allegations in Document "N" cannot make any difference, even if found to be true. The first complaint for which Document "N" is offered as evidence relates to the failure by the University to alter the academic record. As noted above, there is no evidence provided by the applicant to show that this should have been done, nor that the failure to do so related in any way to his homosexuality. Document "N" does not change this. The second complaint relates to the exclusion of the applicant from study. Again, he says that this is a result of victimisation; again, there is nothing, even in Document "N", which links the exclusion to the applicant's homosexuality. Tribunal's decision 17 While the Tribunal understood that Mr Margan was not appealing against the decision of the President to decline his complaint under s 90(1) of the AD Act as lacking in substance, it agreed with the reasons the President gave for his decision. The Tribunal found, at [13], that: In particular, there is no evidence at all in the original complaints that the University acted as it did (in refusing to amend its enrolment record to show the applicant as always having been enrolled in a PhD, rather than reflecting his commencement of a Master's degree; in refusing to fund the Mardi Gras Float; in excluding him from study and in the conduct of the appeal) on the basis of an unlawful discrimination on the grounds of the applicant's homosexuality. There is no link, legal or factual, between the applicant's homosexuality and the matters complained of. Indeed, there is very little reference to homosexuality in the original trigger for these complaints, the alleged harassment by Dr Conn. There is, on the other hand, in relation to the enrolment, exclusion and appeal complaints, documentary evidence that the University followed its own policies and procedures in taking the various actions. In relation to the Mardi Gras funding, the Council decision was not related to the applicant at all, as reflected in the Council minutes. 18 The Tribunal went on to consider the material in Mr Margan's "Reply to Lack of Substance Complaint" including a statement by Mr Margan which was attached at Document N. In relation to the incidents of alleged victimisation (1) and (3), as summarised by the President of the Board and accepted by Mr Margan, which the Tribunal referred to as the first complaint and the second complaint relating to Document N, the Tribunal concluded, at [32] to [33] that: The first complaint for which Document "N" is offered as evidence relates to the failure by the University to alter the academic record. As noted above, there is no evidence provided by the applicant to show that this should have been done, nor that the failure to do so related in any way to his homosexuality. Document "N" does not change this. The second complaint relates to the exclusion of the applicant from study. Again, he says that this is a result of victimisation; again, there is nothing, even in Document "N", which links the exclusion to the applicant's homosexuality. Accordingly, those two complaints should be dismissed pursuant to s 111(1) of the Anti-Discrimination Act 1977 as lacking in substance. Failure to consider victimisation complaints 19 The Tribunal's reasoning set out above discloses an error of law which was not raised by Mr Margan on appeal. The Tribunal sought in the material before it evidence of a connection between the conduct complained of and Mr Margan's homosexuality. A complaint of victimisation does not require proof that the detriment was on the ground of the applicant's homosexuality. The Tribunal asked itself the wrong question. It should have asked whether there was a connection between the conduct complained of and an act of the type described in s 50. 20 The Tribunal did not refer to s 50 in its decision, or consider whether Mr Margan's allegations could possibly succeed under that provision. The Tribunal's failure to do so constitutes an error of law justifying the decision to dismiss incidents (1) and (3) of the complaint being set aside. Extension to the merits of incidents (1) and (3) 21 Having found an error of law, the Appeal Panel must determine whether leave should be granted to extend the appeal to the merits of the decision in relation to incidents (1) and (3). We have access to the transcript of the Tribunal proceedings and the evidence relied on by Mr Margan. No issue of credit arises in these proceedings. Consequently, rather than remit the matter to be heard and decided again, it is more efficient for the Appeal Panel to resolve the matter itself. The issue to be resolved is whether the complaints of victimisation as outlined in incidents (1) and (3) should be dismissed as lacking in substance. 22 To make out a complaint of victimisation, Mr Margan must establish that: · The respondent has subjected him to a detriment; · The reason for subjecting him to that detriment was because he alleged that the respondent (or any other person) has committed an act which, whether or not the allegation so states, would amount to a contravention of the AD Act. 23 In relation to incident (1), the detriment which Mr Margan alleges he has been subjected to is the non-alteration of his academic record to reflect the true nature of his enrolment. If Mr Margan can establish that his enrolment record is incorrect, then the failure to alter that record would be a detriment. Mr Margan maintains that the reason for the University not altering his records was that he had alleged that a lecturer, Dr Costa Conn, had harassed him on the ground of his homosexuality. Homosexual harassment of a student by a lecturer would amount to a contravention of the AD Act under s 49ZO(2) of the AD Act. The fact that there is no direct evidence of a link between the alleged detriment and the allegation that he was harassed by a lecturer does not mean that this complaint is lacking in substance. There is a serious question of fact to be determined. When evidence from both the appellant's and the respondent's witnesses has been heard, and all relevant documents have been examined, an inference may be available of a causal connection between the detriment and alleging a contravention of the AD Act. Consequently, the complaint concerning incident (1) should not be dismissed as lacking in substance. 24 In relation to incident (3) the alleged detriment is the respondent's exclusion of Mr Margan from the University. Again he says that the reason for the exclusion was that he alleged that a lecturer, Dr Costa Conn, had harassed him on the ground of his homosexuality. For the reasons outlined above, the absence, in the material before the Tribunal at that stage of the inquiry, of any direct evidence of a link between those two events is not fatal to Mr Margan's claim. As with incident (1), there is a serious question of fact to be determined. All the evidence needs to be heard and tested before a finding can be made. Consequently, the complaint concerning incident (3) should not be dismissed as lacking in substance. Incident (2) 25 In relation to incident (2) the Tribunal adopted the findings of the President of the Anti-Discrimination Board that: You have not provided any information to demonstrate that the decision of UTS not to fund an entry in the Sydney Gay and Lesbian Mardi Gras caused a detriment to you in your capacity as a student of UTS, nor that the decision was in any way connected to your homosexuality. 26 To be successful in substantiating a complaint of homosexuality discrimination in education, Mr Margan would have to establish that there has been a breach of s 49ZO(2), that is, that the University has discriminated against him on the ground of his homosexuality by: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority, or (b) by expelling the student or subjecting the student to any other detriment. 27 The Tribunal agreed with the point made by the President of the Board that Mr Margan had not provided any evidence that he had suffered any detriment as a result of the University's decision not to fund a float in the Gay and Lesbian Mardi Gras. However, it is arguable that Mr Margan and the other members of the action group were subjected to less favourable treatment in that they were denied the benefit of a special grant to fund a float. Whether or not the granting of funds falls outside the functions of the Council of the University is a question of fact which is yet to be determined. Consequently the Tribunal erred in law by not asking itself whether, despite the absence of a detriment, it was arguable that Mr Margan had been denied access to a benefit pursuant to s 49ZO(2)(a). Extension to the merits of incident (2) 28 For the reasons given in para [21] it is more efficient for the Appeal Panel to resolve the matter itself. Whether or not the decision was "on the ground of" homosexuality as defined by s 49ZG is a question about which there was some evidence, namely comments made by the Chancellor of the University. In those circumstances it cannot be said that incident (2) could not possibly succeed. The Tribunal's decision in relation to incident (2) is set aside. Incident (4) 29 In relation to incident (4), the Tribunal adopted the findings of the President of the Anti-Discrimination Board that: You have not demonstrated that you were prevented from appealing [from] the findings of the conduct committee. 30 The Tribunal noted that Mr Margan admitted that he did not take part in the appeal against his exclusion. On 14 March 2001 the Registrar of the University wrote to Mr Margan advising him that he could appeal against a penalty imposed on him for breach of discipline by 12 April 2001. Mr Margan responded on 20 April 2001 but the Registrar wrote back on 1 May advising that it was not clear whether his response was an appeal or not. The Registrar gave Mr Margan a further 10 days to clarify his position. Further correspondence ensued and Mr Margan was advised by letter that if he did intend to appeal, a preliminary hearing of an Appeal Committee could be held in October. A copy of a letter dated 16 August 2001 was hand delivered to Mr Margan. As the University received no response to that letter the matter was closed and action was taken to exclude Mr Margan from the University. 31 It is clear from the evidence that there was no automatic right of appeal against the penalty for breach of discipline. Mr Margan needed to make it known to the respondent that he intended to appeal and provide the necessary documentation. Mr Margan cannot reasonably argue that the respondent has subjected him to a detriment by not giving him an automatic appeal right, because the existence or not of appeal rights, and the terms on which they are offered, are administrative matters for the University in relation to all students, and not a decision taken in relation to Mr Margan. There is no possibility that any other evidence could be brought which would enable the Tribunal to make a finding that the denial of an automatic right of appeal amounts to subjecting Mr Margan to a detriment. The uncontroverted facts are that Mr Margan had a reasonable opportunity to appeal and did not take advantage of that opportunity. In those circumstances a complaint based on that assertion can be said to be lacking in substance. Consequently, the Tribunal's decision to dismiss that aspect of the complaint outlined as incident (4) is affirmed. Order 1. The Tribunal's decision to dismiss incidents (1), (2) and (3) of the complaint is set aside. 2. The Tribunal's decision to dismiss incident (4) of the complaint is affirmed. 3. The matter to the extent of the complaints relating to incidents (1), (2) and (3) is remitted to a differently constituted Tribunal for hearing. 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