Appeal Panel - Internal CITATION: Horner v West and ors (EOD) [2008] NSWADTAP 3 APPELLANT Paul Horner FIRST RESPONDENT Paul West SECOND RESPONDENT William Middleton THIRD RESPONDENT Darren Toomey FOURTH RESPONDENT Anthony Towney PARTIES: FIFTH RESPONDENT Gillian Edge SIXTH RESPONDENT Harry Cutmore SEVENTH RESPONDENT Douglas Hall EIGHTH RESPONDENT Jacqueline Kennedy NINTH RESPONDENT Commissioner of Police, New South Wales Police FILE NUMBER: 079063 HEARING DATES: 15 November 2007 SUBMISSIONS CLOSED: 15 November 2007 DATE OF DECISION: 24 January 2008 BEFORE: Hennessy N - Magistrate (Deputy President) MATTER FOR DECISION: Preliminary matter DECISION UNDER APPEAL: West and ors v Commissioner of Police, New South Wales Police [2007] NSWADT 240 FILE NUMBER UNDER APPEAL: 071017 DATE OF DECISION UNDER APPEAL: 10/05/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Bignell v New South Wales Casino Control Authority (EOD) [2001] NSWADTAP 41 Coulter v R [1988] HCA 3; (1988) 164 CLR 350 Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 CASES CITED: Dixon v RNJ Sicame Pty Ltd and Anor [2002] NSWADT 154 Hanratty v Kempsey Shire Council [2002] NSWADT 232 Italiano v Carbone [2005] NSWCA 177 (unreported, 2 June 2005) Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Spence v Roberts [2006] NSWADT 105 APPELLANT A Hatcher, barrister REPRESENTATION: FIRST TO EIGHTH RESPONDENT D Hillard, solicitor NINTH RESPONDENT K Kerr, solicitor ORDERS: Leave to appeal against the Tribunal's decision to join Mr Horner as a party to the proceedings is refused. REASONS FOR DECISION Background 1 Mr Horner, a police officer, has appealed against a decision of the Tribunal joining him as a party to a complaint made under the Anti-Discrimination Act 1977 (AD Act). The complainants are eight Aboriginal police officers. The complaint relates to what they regard as a racist email. It is alleged that Mr Horner was the originator of the email, an allegation which he did not deny. When the President of the Anti-Discrimination Board referred the complaint to the Tribunal he characterised it is a complaint of race discrimination against the Commissioner of Police. At the first case conference the complainants said that they regarded it as a complaint of racial vilification as well and sought to join Mr Horner as a party to that complaint. 2 The Tribunal decided to hear the application to amend the complaint to add racial vilification and the application to join Mr Horner, "on the papers", that is, without having an oral hearing: Administrative Decisions Tribunal Act 1997, (ADT Act) section 76. The complainants served Mr Horner with an application to join him as a party to the proceedings and he filed a submission in response. The Tribunal decided that it was not necessary to amend the complaint because an allegation of racial vilification came within the subject matter of the complaint as referred and the Tribunal is not bound by the President's characterisation of the complaint. The Tribunal also decided to join Mr Horner as a party to the proceedings. Mr Horner has sought leave to appeal against that decision. Principles applicable to leave applications 3 Being an interlocutory decision, the Appeal Panel's permission or "leave" is required before such an appeal can go ahead: ADT Act, section 113(2A). There is no guidance in the ADT Act as to the factors that should be taken into account in determining whether to grant leave to appeal against an interlocutory decision. Guidance can be obtained from the way the courts have dealt with this issue. The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R [1988] HCA 3; (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 175. Nevertheless, the general rule is that the discretion to grant leave to appeal from an interlocutory decision should only be exercised where there are substantial reasons for doing so: Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364. Generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398–9. The second element requires an examination of the strength of the grounds of appeal. Joinder provisions 4 The Tribunal may make a person who is not a party to proceedings, a party to those proceedings. The relevant provision is section 67(4) of the ADT Act: The Tribunal may, by order, make a person who is not a party to proceedings for: (a) an original decision,. . . a party to the proceedings, either of its own motion or on the written application of the person, if the Tribunal is satisfied that the interests of the person are likely to be affected by the original decision or are affected by the reviewable decision or the decision that is the subject of the external appeal. 5 The power to join a party firstly requires a determination of whether the interests of the person are likely to be affected. If they are likely to be affected, the Tribunal must then decide whether to exercise its discretion to join that person as a party to the proceedings: Bignell v New South Wales Casino Control Authority (EOD) [2001] NSWADTAP 41at [12]. The first determination is not appealable to the Appeal Panel: ADT Act , section 68(2). 6 The joinder provision says that a person may be joined either on the Tribunal's own motion or on the written application of the person seeking to be joined. Because another party made the application in this case, Mr Horner submitted that the Tribunal had no jurisdiction to join him as a party. He said that the Tribunal made an error of law in rejecting that submission. We assess the strength of that submission and Mr Horner's other grounds of appeal below. Grounds of Appeal 7 Jurisdiction. The Tribunal set out the submissions and its conclusions on the jurisdiction point at [14] to [19]: 14 As Mr Horner correctly points out, section 67(4) gives non-parties, not parties, a right to apply to be joined to proceedings. He contends therefore that the application bought by the applicants is incompetent and cannot be entertained. 15 The Appeal Panel in Bignell v NSW Casino Control Authority (EOD) [2001] NSWADTAP 41 at [11] confirmed that the Tribunal's discretion to join a person cannot be enlivened by the application of a party, but went on to state that a party: [M]ay nevertheless bring to the Tribunal's attention a perceived need for joinder of a person, thereby giving rise to the Tribunal's exercise of the power, of its own motion, as it were. 16 Mr Horner questions the correctness of that approach arguing that it could be seen to subvert the AD Act by allowing a party to do indirectly what the statute does not allow it to do directly. In any event, he points out that in this case the joinder 'application' is not framed as an invitation to the Tribunal to act on its own motion. 17 In my opinion, the approach endorsed by the Appeal Panel in Bignell is correct. Whether the Tribunal can consider an 'application' not expressed in terms of an 'invitation', must be considered by reference to the legislative framework in which the Tribunal operates. The Tribunal has the power to determine its own procedure (section 73 (1) of the Tribunal Act); is required to act with as little formality as the circumstances of the case permit and according to the substantial merits of the case without regard to technicalities or legal forms (section 73 (3) of the Tribunal Act). 18 In a jurisdiction where the Tribunal is instructed not to allow technicalities or form to trump substance, it seems to me that it is open to the Tribunal to treat an 'application' to join a person made by a party, as an 'invitation'. While the Tribunal is not compelled to consider such an application, irrespective of whether it is framed as an application, invitation or request, I do not accept Mr Horner's contention that the 'application' brought in this matter must be dismissed on the ground that it is incompetent. 19 Mr Horner contends that if the Tribunal were to exercise its discretion to order joinder on its own motion, the principles of procedural fairness would demand that he be notified of the reasons the Tribunal is considering joinder and be given an opportunity to make further submissions. It is not necessary to determine this argument as I have confined myself to the issues raised by the applicants, which Mr Horner has had an opportunity to address. Therefore, any issue of procedural fairness does not arise. 8 Mr Horner submitted that section 67(4) of the ADT Act requires either the Tribunal's own motion or the written application of the person who is not a party to the proceedings in order to invoke the Tribunal's power to join a non-party. Since neither had occurred in this case, Mr Horner said the decision to treat the application, as an invitation is a fiction, which subverts the statute. He also said that the Tribunal's decision was inconsistent with the decision in Bignell , which merely noted that the Tribunal may exercise power of its own motion in circumstances where a party brought the matter to the Tribunal's attention. 9 The complainants submitted that the Tribunal's decision is consistent with the approach it has previously adopted in decisions including Dixon v RNJ Sicame Pty Ltd and Anor [2002] NSWADT 154, Hanratty v Kempsey Shire Council [2002] NSWADT 232 and Spence v Roberts [2006] NSWADT 105. According to the complainants, this ground of appeal provides no substantial reason to grant leave to appeal. 10 In my view, it is unlikely, if leave were granted, that Mr Horner would be succeed in the persuading the Appeal Panel that the Tribunal has no jurisdiction to join a party to a proceeding on the application of another party. Section 73(1) of the ADT Act allows the Tribunal to determine its own procedure, subject to the Act and the rules of the Tribunal. Section 73(3) permits the Tribunal "to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." The question of who may initiate an application to join a party to a proceeding is essentially a procedural question. I do not regard the provisions in section 67(4) as imposing a mandatory procedural requirement. Compliance or non-compliance with such a provision has no effect on procedural fairness: Cf Italiano v Carbone [2005] NSWCA 177 (unreported, 2 June 2005). In those circumstances, it is strongly arguable that section 73(3) and section 73(1), in combination, allow the Tribunal to hear an application for joinder made by a party to the proceedings. 11 Procedural fairness. Mr Horner set out four grounds of appeal based on an alleged breach of procedural fairness. These were that: a) he was not present at the case conference on 11 July 2007 when the Tribunal gave the parties an opportunity to object to the joinder issue being determined 'on the papers'; b) a copy of the President's Report and correspondence between the parties referred to in [28] of the decision was not and has not been provided to him; c) a copy of the "audit trail" referred to at [29] of the decision was not and has not been provided to him; and d) a copy of the findings of police investigators and the decision to discipline Mr Horner on the basis of those findings, were not and have not been provided to him. 12 In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is "credible, relevant and significant to the decision to be made": Kioa v West , [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 629. While all documents, which contain adverse material, do not necessarily have to be provided to a party, the substance or gravamen of the material should be disclosed. 13 Hearing on the papers. Under section 76: The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. 14 There is no requirement that the Tribunal consult with parties or potential parties before deciding to determine proceedings in the absence of the parties. It merely has to "appear" to the Tribunal that the issues can be adequately determined in the absence of the parties. While the Tribunal did consult the existing parties before deciding to determine the issue on the papers, a failure to consult with Mr Horner is highly unlikely to amount to a breach of procedural fairness. 15 President's Report. The complainants served Mr Horner with an application that he be joined as a party on 31 July 2007. The President's Report was referred to but not included in that application. On 4 September 2007 Mr Horner, who is legally represented, filed written submissions in reply to the joinder application. The complainants say that it was open to Mr Horner to request a copy of the President's report at any time. In any event, the complainants say that there was nothing in the President's Report, which could have caused any unfairness to Mr Horner particularly when he had a copy of the complaint and the email. The complainants say that Mr Horner well understood the basis on which joinder was being sought. Since the President's Report does not refer to Mr Horner and Mr Horner does not deny that he sent the email, the complainants say that there is no unfairness by virtue of the fact that he was not provided with a copy of the President's Report. 16 It is unlikely that Mr Horner would be successful in his claim that the Tribunal had breached procedural fairness by not providing him with a copy of the President's Report. Mr Horner was well aware of the substance or gravamen of the allegations against him. He had an adequate opportunity to respond to those matters so far as they were relevant to the joinder application. 17 Audit trail. Mr Horner says that he was not given a copy of the "audit trail" referred to at [29] of the Tribunal's decision. To put the significance of the "audit trail" in context, we set out [28] to [30] of the Tribunal's reasons for decision: 28 At this stage of the proceedings, there is limited information before me, namely the President's Report and correspondence between the parties. The parties have not yet been required to file evidence. 29 This material reveals that the respondent conducted an investigation including an 'audit trail' into the offending email. The investigation identified a number of officers involved in the distribution of the email, of which Mr Horner was one. Disciplinary action was taken against those officers. The offending email was disseminated on the police service's internal email system. The precise number of persons who received the email is unknown. However, the copy of the email contained in the President's Report indicates that it was at least 20. 30 From that material, it is unclear what role Mr Horner played in the distribution of the email. The finding by the respondent that Mr Horner was responsible in some way for the circulation of the email is not binding on the Tribunal. Even if that finding is adopted, it does not of itself establish that Mr Horner 'committed' a public act. He contends that at its highest, the material before the Tribunal indicates that he sent the email on to one other person but not that he circulated it at large. 18 It is apparent from this extract and the complainants' submission that neither the Tribunal, nor the complainants were provided with a copy of the "audit trail". We agree with the complainants' submission that the identity of the persons named in the audit trail was not a factor relied on by the Tribunal in reaching its decision to join Mr Horner as a respondent to the proceedings. Consequently, this ground of appeal has virtually no prospect of success. 19 Other errors. Three other errors that Mr Horner alleged the Tribunal had made were to: a) refer to comments of the former Assistant Commissioner of Police, which were said to be irrelevant; b) refer to the opinion of the former Assistant Commissioner of Police, which was said to be irrelevant; c) rely on findings made by Police Investigators, the decision to discipline him on the basis of those findings and the receipt of the email by at least twenty users of the Police internal email system rather than the statement or other source materials that were considered by the police investigators; and d) failing to have regard to Mr Horner's claim that he did not send the email "at large" but merely that he sent it to a person or persons unknown. 20 The Tribunal noted at [1] of its decision that the email was described by the former Assistant Commissioner of Police in the following terms: A highly offensive and racist email, circulated over the NSW Police memo system. The email contained inflammatory content directed toward the Aboriginal community in particular. 21 The Tribunal did not make any finding in reliance on the Commissioner's opinion. Rather, the Tribunal said, at [35], that: While not determinative, I note that the Assistant Commissioner of Police, was of the opinion that the derisive comments in the email were directed towards the Aboriginal community. Whether ultimately the Tribunal adopts that view is a matter for evidence and submissions. However, having regard to the contents of the email and the material provided by the applicants, in my view it is arguable that the email was referring to Aboriginal people. 22 The complainants pointed out that the findings made by police investigators and the source materials, on which those findings were based, have not been provided to them. In relation to the strength of the complainants' assertion that Mr Horner had committed a "public act" (one of the essential elements of a complaint of racial vilification) the Tribunal said, at [32], that: There is no direct evidence that Mr Horner committed a 'public act'. However, in my view, taking the applicants' case at its highest, there is some material capable of being converted into evidence, which if accepted could support that inference being drawn. This includes the finding made by police investigators that Mr Horner had some involvement in the distribution of the email; the respondent's decision to discipline him on the basis of that finding; the receipt of the email by at least 20 users of the respondent's internal email system. In reaching this conclusion, I have not had regard to Mr Horner's claim that he did not send the email 'at large'. 23 We agree with the complainants' submission that the issue for the Tribunal was whether there was any material capable of being converted into evidence, which if accepted at the hearing, could establish that a public act had been committed. It was not a denial of procedural fairness that Mr Horner had not yet seen all the evidence. 24 The complainants agreed that their case, at its highest is that Mr Horner sent the email on the internal police email system. The Tribunal found that even accepting that the email was not sent "at large" there was some material capable of being converted into evidence, which could support an inference that Mr Horner had committed a public act. As there was material to support that inference, an argument that the Tribunal had erred in making that finding is unlikely to succeed. Conclusion 25 An analysis of the grounds of appeal reveals that the decision of the Tribunal is not attended by sufficient doubt to warrant it being reconsidered. I appreciate that if leave is refused, Mr Horner may well incur legal costs, which may not be recoverable regardless of the outcome of the proceedings. I do not regard that as a substantial injustice because Mr Horner will have an opportunity to defend himself at the substantive proceedings. As the complainants pointed out, the original complaint to the Tribunal was made against the person who sent the email. Mr Horner has not denied that he was that person. The President of the Tribunal did not name Mr Horner as a respondent to the complaint. The complainants have been successful at first instance in having Mr Horner joined as a party. In all the circumstances, leave to appeal against that decision should be refused. 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