Reyes Gonzalez v TAFE [1999] NSWADTAP 4

Appeal Panel

CITATION: Reyes Gonzalez v TAFE [1999] NSWADTAP 4 decision revised on: 08/20/1999

APPELLANT: Raymon Reyes Gonzales

RESPONDENT: NSW TAFE Commission

FILE NUMBER: 999008

HEARING DATES: 08/02/1999

SUBMISSIONS CLOSED: 08/02/1999

DATE OF DECISION: 13 August 1999

Decision to limit the scope of the Applicant's complaint DECISION UNDER APPEAL:

K P O'Connor DCJ - President BEFORE: N Rees - Judicial Member L Farmer - Member

FILE NUMBER UNDER APPEAL: 4 of 1997

DATE OF DECISION UNDER APPEAL: 03/06/1998

PRIMARY LEGISLATION: Anti-Discrimination Act 1977

Appellant: P Gwozdecky, counsel REPRESENTATION: Respondent: S Winters, counsel instructed by Crown Solicitor's Office

ORDERS: 1. Appeal dismissed

1 The Appeal Panel has before it a notice of appeal filed by Mr Raymon Reyes Gonzales. Mr Gonzales (the appellant) has a complaint on foot in the Equal Opportunity Division of the Tribunal against the Sydney Institute of Technology (the respondent) alleging various contraventions of the Anti-Discrimination Act 1977 (the Act). The complaint has a long history. The appellant's original complaint was lodged with the Anti-Discrimination Board (the Board) on 3 January 1995, with further allegations being made in a letter dated 3 May 1995. The complaint concerns the way in which the appellant was dealt with as a student in a marketing course provided by the respondent during 1994 and early 1995. 2 The President of the Board declined the complaint as lacking in substance in November 1996; and at the request of the appellant it was referred to the Equal Opportunity Tribunal (EOT) on 23 December 1996. The EOT formerly exercised the jurisdiction now conferred on the Equal Opportunity Division of this Tribunal. Under the transitional provisions complaints before the EOT continued as Tribunal proceedings as from the date of commencement, 6 October 1998: Administrative Decisions Tribunal Act 1997 (the Tribunal Act), Schedule 5, cl 14. 3 The EOT dealt with an application by the respondent to dismiss the appellant's complaint under s 111 of the Act. It handed down its decision on 6 March 1998. The EOT declined jurisdiction in respect of several allegations contained in his complaint to the Tribunal on the grounds that they postdated the complaints to the Board or were beyond the ambit of the complaints to the Board. It permitted the remainder of the complaint to proceed, otherwise rejecting the respondent's application. 4 The appellant now seeks, 17 months later, to challenge the EOT ruling as to jurisdiction, which had the effect of limiting the scope of his complaint. Jurisdiction 5 The principal submission advanced by Ms Winters for the respondent was that the Appeal Panel had no jurisdiction to consider this appeal because any appeal rights which the appellant had were to be found in the former s 118 of the Act. Prior to the commencement of the Administrative Decisions Legislation Amendment Act 1997 on 6 October 1998 s 118 of the Act provided for an appeal to the Supreme Court, on a question of law, from a decision or order of the EOT. Section 118 provided that appeals must be made to the Supreme Court within 21 days after the decision or order appealed against. The Supreme Court held on a number of occasions (see eg. Geoffrey Button Sales Pty Limited v Robson & Anor (1985) EOC 92-145 and Fonua v BHP Pty Limited (1995) EOC 92-750) that it had no power to extend the 21 day time limit for lodging an appeal. Thus, Ms Winters argued, any appeal rights which the appellant had expired at the conclusion of 21 days after the EOT's order. 6 This submission must be considered in the light of the transitional provisions found in Schedule 5 to the Tribunal Act. As noted earlier, the Tribunal Act abolished the EOT and caused its jurisdiction to be transferred to the Equal Opportunity Division. It was necessary to establish a rather complex set of transitional arrangements and this was done in Schedule 5 which has been amended from time to time. 7 A central part of the transitional provisions is cl 15(1) of Schedule 5 which reads: "An order made under another Act by an abolished body, being an order having effect immediately before the abolition of the abolished body, is taken to be an order made by the ADT under the corresponding provision of that Act (as amended by the relevant amending Schedule) or this Act (as the case may be)." The relevant effect of cl 15(1) is to deem orders of the EOT, made under the Act, to be orders of the Tribunal. This is a sensible and broad deeming provision, commonly used in circumstances such as the present, with the apparent primary objective of permitting the orders of the EOT which were still current at the time of its abolition to be enforced under the machinery provisions of the Tribunal Act by being deemed to be orders of the Tribunal.