New South Wales Court of Appeal CITATION : Mishra v University of Technology, Sydney [2000] NSWCA 310 FILE NUMBER(S) : CA 40128/00 HEARING DATE(S) : 25 October 2000 JUDGMENT DATE : 25 October 2000 PARTIES : Ram B Mishra - Claimant University of Technology, Sydney - Opponent JUDGMENT OF : Priestley JA at 16; Giles JA at 2; Rolfe AJA at 17 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 30109/98 FILE NUMBER(S) : LOWER COURT Kirby J JUDICIAL OFFICER : COUNSEL : Claimant in person Ms J Oakley - Opponent SOLICITORS : Claimant in person Minter Ellison - Opponent CATCHWORDS : Application for leave to appeal - no arguable error shown - turns on own facts. ND DECISION : Application for leave to appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40128/00 CL 30109/98 PRIESTLEY JA GILES JA ROLFE AJA Wednesday 25 October 2000 MISHRA v UNIVERSITY OF TECHNOLOGY, SYDNEY JUDGMENT 1 PRIESTLEY JA: The Court is in a position to give its decision immediately. I will ask Giles JA to give his reasons first. 2 GILES JA: This is an application for leave to appeal from a decision of Kirby J given on 25 February 2000. An extension of time to apply for leave to appeal was granted earlier today. 3 On 25 September 1995 Mr R B Mishra, the complainant, complained against the University of Technology, the opponent, to the Anti-Discrimination Board alleging discrimination on the ground of race. After investigation of his complaint, on 20 October 1997 the Anti-Discrimination Board dismissed his complaint. 4 The complainant requested that his complaint be referred to the Equal Opportunity Tribunal for inquiry, and it came before a Tribunal constituted by Judge Murrell as Senior Judicial Member and two Members. The opponent had applied to have the complaint dismissed by the Tribunal pursuant to s 111(1) of the Anti-Discrimination Act 1997, but when the Tribunal commenced its hearing on 18 September 1998 it seems that it was decided to have the matter proceed upon the merits. 5 The claimant gave his evidence in chief on that day. From the reasons of Kirby J in the course of the proceedings the claimant accused Judge Murrell of lying, asserting she had made certain statements, which she denied. The statements did not appear in the transcript, and the claimant asserted that the transcript had been altered. He sought to have Judge Murrell replaced, and later wrote a letter to the Tribunal stating that the hearing "will be remain postponed until new Judge (not Judge Murrell) is appointed." The hearing was adjourned to 24 September 1998 and again to 14 October 1998. The claimant was notified but failed to attend, as Kirby J noted apparently objecting to the presence of Judge Murrell. 6 On 14 October 1998 Judge Murrell addressed the question of whether she should disqualify herself, treating the letter to which I have referred as an application that she do so, but declined to disqualify herself. On the same day the Tribunal delivered reasons in which it concluded that the proceedings should be dismissed under s 111(1), on the basis of the claimant's lack of prosecution of the proceedings and also on the basis that the proceedings were "quite lacking in substance." It ordered that the proceedings be dismissed. 7 On 3 November 1998 the claimant filed a summons in the Administrative Law Division of the Supreme Court, in which he claimed orders that the decision of the Tribunal be set aside and that the complaint be remitted for hearing. On 19 January 1999 the opponent filed a notice of motion seeking an order that the summons be dismissed on the ground that, as a result of changes in the legislation coming into effect on 6 October 1998, there was no longer a right of appeal from a decision of the Tribunal to the Court. This notice of motion was dealt with by Dunford J on 12 February 1999, and was dismissed, but without a ruling on the question of a right of appeal. For reasons which his Honour gave, including that the issue had not been the subject of full argument because the claimant was representing himself, his Honour thought that it would be better to let the matter proceed to a hearing of the summons. So in due course the summons came before Kirby J and resulted in the decision of 25 February 2000 from which the claimant seeks leave to appeal. 8 Kirby J also preferred not to determine whether there was a right of appeal from a decision of the Tribunal, nor did his Honour rule upon whether the summons should be regarded as seeking prerogative relief or in some wider manner a review of the decision of the Tribunal. His Honour considered it appropriate that he should survey the material which the claimant had put before him, while saying that he was conscious that his examination of the material was little different to a merits review which was not available in the Court. At the conclusion of detailed reasons, his Honour said that there was no material before him which suggested an error of law on the part of the Tribunal when judgment was given on 14 October 1998. His Honour said, as to each of the matters which could be thought to have been in issue, that there was no basis upon which the parties or a member of the public might entertain that Judge Murrell would not bring an impartial and unprejudiced mind to the resolution of the issues involved in the claimant's complaint; that given his failure to pursue his complaint the decision to dismiss the complaint for that reason was plainly open; and that it was open to be concluded that there was no evidence of any discrimination against the claimant on the basis of race. His Honour went on to say that he was satisfied that, if he were permitted to review the claimant's complaint on its merits, he would dismiss the complaint. His Honour ordered that the summons be dismissed. 9 In support of his application for leave to appeal, which the claimant accepts as necessary, the claimant has put before us a number of documents. He has provided what has been referred to in the course of submissions as a three page document, being three pages in which, according to the claimant, there are to be found the four key points on which he wishes to rely in his appeal. That document has some supporting material attached to it, and the claimant further supports it by reference to a bundle of documents provided in support of his application. The claimant has also, at the request of the Court, summarised the four key points in his oral submissions and I think it best to concentrate on the four points so identified. 10 The first key point was said to be that in para 13 of his reasons Kirby J said that the complaint should go back to the Tribunal but, having said so, did not send it back to the Tribunal. Neither in para 13 of his reasons nor elsewhere can I see that his Honour did say that the complaint should go back to the Tribunal: indeed, the whole point of his Honour's decision was that it should not. In para 13 his Honour referred to the changes which came about as a result of the legislation coming into force on 6 October 1998, and what he there said includes a reference to an Appeal Panel established pursuant to the Administrative Decisions Tribunal Act, 1997 to hear appeals from Divisions of the Administrative Decisions Tribunal established by the same Act. The former Equal Opportunity Tribunal was subsumed within the Administrative Decisions Tribunal, and became the Equal Opportunity Division of the latter Tribunal. There was a right of appeal from the Equal Opportunity Division to an Appeal Panel. Whatever the claimant's right may be in relation to such an appeal - and I say nothing about what they might be - Kirby J did not say that the complaint could or should go to an Appeal Panel. The first key point must come from a misunderstanding of his Honour's reasons. 11 The second and third key points were, I think, related and came down to one point. In paras 29 to 34 of his reasons Kirby J referred to the application heard by Dunford J and gave his Honour's own reasons for concluding that the summons should not be dismissed on the basis that the claimant's only rights were to go to the Appeal Panel. It was submitted to us, as I understand it, that Dunford J had ruled in some manner that the complaint should go back to the Tribunal because Dunford J had dismissed the opponent's application to have the summons struck out. It was said that Kirby J had wrongly departed from Dunford J's ruling. Again, this seems to me to involve a misunderstanding of the reasons of Kirby J, and also of what Dunford J said and did. The result of what Dunford J said and did was no more than to leave the claimant's summons on foot for a hearing, as it turned out before Kirby J. Once again, there was nothing in Kirby J's reasons involving the consequence that the complaint should be remitted to the Tribunal. 12 The fourth key point was concerned with paras 87 and following of Kirby J's reasons. In those paragraphs Kirby J summarised and set out extracts from some correspondence concerning a complaint that whilst completing his degree at the University the claimant was not offered a scholarship. His Honour set out extracts from a letter from Associate Professor Nguyen responding to a letter from the claimant. 13 The former letter was put before us in its full form and in that form contained a small blank with the notation "Two sentences deleted. See Schedule." It appears that the letter as obtained by the complainant was in that form, that is, with what the claimant before us described as two lines deleted. The claimant's point was that Kirby J's decision was vulnerable because of the deletion of the two lines. 14 I do not think there is anything in this point. It is, in my view, a proper inference that the letter with the two lines deleted was in that form when provided to Kirby J amongst the material which the claimant desired him to consider. His Honour cannot have erred in any way, therefore, in failing to take account of the deletion of the two lines even assuming - and it is not apparent from the content of the letter and the occasion for his Honour's reasons to refer to it - that the two lines could have been material to the complaint concerning a scholarship. 15 The view which I have come to is that no reason has been shown to regard the decision of Kirby J as erroneous, even on an arguable basis. Accordingly, in my opinion leave to appeal should be refused. 16 PRIESTLEY JA: I agree. 17 ROLFE AJA: I also agree. CLAIMANT: He didn't discuss about the 30 cut off, the Dunford report, so many points in this case. When I asked this, there are so many points, he has by passed them. When I went the scholarship they said if you need an application then they give me a copy. My doctor friend making so many -- PRIESTLEY JA: We are in the course of giving our decision. The decision is that the application for leave is dismissed and the ordinary order for costs, that the application is dismissed with costs. That is the end of that application for leave. ________ 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.