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. 8 A literal and isolated reading of cl 15(1) could lead, however, to the conclusion that the Appeal Panel has the jurisdiction to entertain this appeal even though under the former legislation the appeal rights expired 21 days after the orders appealed against were made on 6 March 1998. 9 The process of reasoning would be that the orders of the EOT made on 6 March 1998 are deemed by cl 15(1) of Schedule 5 to be orders made by the Tribunal. Under s 113 of the Tribunal Act a party to proceedings before the Tribunal is given the right to appeal to an Appeal Panel against an "appealable decision". That term is defined in s 112 in sufficient breadth to include a deemed decision of the Tribunal within the meaning of cl 15(1) of Schedule 5. We note that whilst Ms Winters sought to draw a distinction between the term "decision" used in ss 112 and 113 of the Tribunal Act and the word "order" used in cl 15(1) of Schedule 5 in order to defeat this argument. The term "decision", however, is defined in s 6(1)(c) of the Tribunal Act to include "making, suspending, revoking or refusing to make an order or determination". Thus, for the purposes of ss 112 and 113 of the Tribunal Act a deemed order of the Tribunal could be an "appealable decision". 10 The end point of this reasoning is that in the absence of any other relevant transitional provisions an order of the former EOT, deemed to be an order of the Tribunal by virtue of cl 15(1) of Schedule 5, could be an "appealable decision" within the meaning of ss 112 and 113 of the Tribunal Act. If this be the case it would then be open to the appellant to argue, pursuant to s 113(3)(b) of the Tribunal Act, that the Appeal Panel had jurisdiction to hear an application to appeal out of time. Thus the appellant would be in a far better position than he was prior to the commencement of the Tribunal Act because the former appeal provisions did not permit the appellate body (the Supreme Court) to extend the statutory appeal period. 11 Clause 14 of Schedule 5 is also relevant for it deals with pending proceedings before an abolished body. By a process of reasoning similar to that employed in paragraphs 9 and 10 above an argument could be mounted that the decision made by the EOT on 6 March 1998 can attract the jurisdiction of an Appeal Panel under s 113 of the Tribunal Act. The argument is strengthened by the terms of cl 14(1) and cl 14(2A): "(1) If proceedings were commenced but not heard by an abolished body before its abolition, the proceedings are taken to have been duly commenced in the ADT." "(2A) A decision made under this clause is taken to be an appealable decision for the purposes of Part 1 of Chapter 7." 12 Clause 14(1) appears to have a retrospective operation. For present purposes that would mean that proceedings commenced in the EOT are deemed to have been commenced in the Tribunal. Clause 14(2A) would appear to mean that any decision made in those proceedings is deemed to be an "appealable decision". Thus reading cl 14 with cl 15 bolsters the argument that the Appeal Panel has jurisdiction to consider an application for leave to appeal out of time pursuant to s 113(3)(b) of the Tribunal Act. 13 This may have been the result which flowed, albeit unintended, from the operation of cl 14 and cl 15(1) of Schedule 5 had not the Schedule been amended by the Courts Legislation Further Amendment Act 1997, No. 141 which inserted a new cl 14A into Schedule 5: see item [14] of that Act. Clause 15 of Schedule 5 cannot be read in isolation for cl 15(3) provides that "This clause is subject to the other provisions of this Schedule." It appears that cl 14A was designed, in part, to overcome the result outlined above. It reads: "Appeals to courts from decision of abolished bodies (1) This clause applies to a decision of an abolished body in respect of which: (a) an appeal to a court under a provision of another Act could have been lodged immediately before the commencement of the amendment of the provision by an appeal amendment, and (b) no such appeal was pending before the court immediately before the commencement of the appeal amendment. (2) Despite anything in section 30 of the Interpretation Act 1987 or any other law, no appeal lies from a decision to which this clause applies to the court that, immediately before the commencement of the appeal amendment, had jurisdiction to hear and determine an appeal from such a decision. (3) However: (a) a decision to which this clause applies is taken to be an appealable decision of the ADT for the purposes of Part 1 of Chapter 7, and (b) a party to the proceedings before the abolished body concerned is taken to have been a party to proceedings in which an appealable decision of the ADT was made. (4) In this clause, appeal amendment means an amendment to a provision of another Act by the amending Act the effect of which is to remove a right to appeal to a court from a decision of an abolished body." 14 The overall effect of cl 14A is to preserve appeal rights, not yet exercised but still in existence at the time the EOT was abolished and its jurisdiction transferred to the Tribunal. Those preserved appeal rights are changed, however, from a right of appeal to a court to a right to appeal to an Appeal Panel of the Tribunal. An example explains the operation of this clause. As at 5 October 1998 a person aggrieved by a decision or order of the EOT could have appealed to the Supreme Court against that decision or order pursuant to the former s 118 of the Act. That appeal, as we have noted, had to be made to the Supreme Court within 21 days of the EOT decision or order. Clause 14A preserved outstanding appeal rights but directed that as from 6 October 1998 the right to appeal to the Supreme Court was removed and replaced by a right to appeal to an Appeal Panel. 15 Clause 14A preserved appeal rights in relation to appeals which "could have been lodged immediately before the commencement of the amendment …" This must refer to appeal rights still in existence, or to put it another way it must not countenance appeal "rights" which had lapsed due to the effluxion of time. Only those people who on or after 6 October 1998 had extant appeal rights fell within cl 14A. Thus by expressly addressing extant appeal rights in the transitional provisions the legislature must be taken to have confirmed that expired appeal "rights" could not be enlivened by the transitional provisions. 16 Consequently the relevant clauses of Schedule 5 when read together and in context lead to the conclusion that there is nothing in the transitional provisions which gives the appellant a right of appeal which he did not have prior to the commencement of the Tribunal Act. Leave to Appeal Out of Time 17 If the Panel is wrong in its conclusion that it lacks jurisdiction, then the question arises as to whether leave to appeal out of time should be granted. Such a power is conferred by s 113(3)(b) of the Tribunal Act. 18 As noted earlier the order to which the appeal relates was made on 6 March 1998. The present appeal was filed some 16 months after that date. Counsel for the appellant noted that he was first instructed in this matter in April 1998 when the period for appeal to the Supreme Court had expired. He said that he had prepared submissions to the Tribunal, and provided a copy to the respondent, in which concerns were raised as to the adequacy of the decision made on 6 March 1998. 19 He noted that when the matter was next listed for directions it had been adjourned at the request of the respondent. There was no discussion of the submissions and he took that to be an indication on the part of the respondent that it was unconcerned over the queries it raised in relation to the decision. He noted that points of claim were filed in the matter on 30 July 1998 and that late in August a summons to produce documents was issued at the request of his client. 20 On 9 October the respondent objected to production and disputed some of the points of claim in light of the decision of 6 March 1998. Counsel's submission was essentially to the effect that the period of delay that occurred between April and October 1998 was inconsequential because there had been no significant progress in the matter. It is reasonably clear from the chronology so far recounted that the slowness of progress was mainly due to the delay by the appellant in filing points of claim. 21 Following the objections made in October 1998 by the respondent, it would appear that the appellant sought to have its submissions as to the adequacy of the decision of 6 March 1998 and the dispute over the points of claim re-listed for directions before her Honour Judge Murrell, the Divisional Head of the Equal Opportunity Division (who when President of the EOT was the presiding member in respect of the decision of 6 March 1998). It is not clear from the material presented to the Appeal Panel why these issues took so long to be re-listed, but that eventually occurred on 26 May 1999 with further consideration being given at the directions hearing on 24 June 1999. At that time her Honour explained that any appeal rights in relation to the decision lay to the Supreme Court or this Appeal Panel. The present appeal was filed on 5 July 1999. 22 Counsel for the appellant also noted that when he was first instructed he was acting on a pro bono basis and that a Legal Aid application was only granted on 27 May 1999 after being made on 27 April 1998. 23 He noted that the appellant was unrepresented on the occasion of the decision of 6 March 1998. 24 He also referred to the substantive importance of the issues raised by the case. He said these related to systemic indirect discrimination in respect of the relationship between educational institutions and students affected by mental disabilities (in this instance schizophrenia). He criticised the outcome of the decision of 6 March 1998 which, he said, prevented his client from having considered his complaints about conduct which occurred after the date of the making of his complaint to the Board. That conduct pertains to the period 1995 to 1997. 25 While reiterating that the respondent's primary objection was as to jurisdiction, counsel for the appellant referred to the need to have regard to broad considerations of justice in considering an application for leave to appeal out of time. 26 The delay in issue is highly disproportionate to the appeal period permitted by the Tribunal Act - 28 days. The factors advanced by an appellant would have to be extraordinary for leave to be granted to pursue an appeal where 16 months has passed since the expiry of the statutory period. The matters canvassed by counsel fall well short of that threshold. Counsel for the appellant appears to have understood throughout the period that the options for having the decision of 6 March 1998 reconsidered and varied were limited. At no stage has there been any attempt to expedite attempts at reconsideration. The applicant has had notice since 9 October 1998 of the respondent's (understandable) desire to retain the benefits of the order of 6 March 1998. This did not lead to any expedition on the part of the applicant in seeking to bring forward its submissions seeking reconsideration. 27 As to the applicant's concerns in relation to not being able to refer at any hearing of his substantive complaint to the events of 1995 to 1997, the Appeal Panel notes that he may with the leave of the President of the Board make a further complaint to the Board in relation to that period. If leave is granted and the complaint is unable to be resolved by the Board, he may have his complaint heard by this Tribunal. 28 So the refusal of leave on this occasion does not operate as a final bar to his ability to make a complaint in that regard. 29 In any case as noted earlier the Appeal Panel's primary basis for refusing to consider the appeal is that it lacks jurisdiction. 30 The appeal is dismissed for want of jurisdiction. 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