Mishra v University of Technology, Sydney [1999] NSWSC 1324

New South Wales Supreme Court CITATION : Mishra v University of Technology, Sydney [1999] NSWSC 1324 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30109/98 HEARING DATE(S) : 09/06/99 16/12/99 JUDGMENT DATE : 25 February 2000

PARTIES : Ram B Mishra (Pl) University of Technology, Sydney (Def) JUDGMENT OF : Kirby J

LOWER COURT JURISDICTION : Administrative Decisions Tribunal (Equal Opportunity Division) LOWER COURT FILE NUMBER(S) : 23/1998 LOWER COURT JUDICIAL OFFICER : Judge Murrell

COUNSEL : In Person (Pl) Ms J Oakley (Def) SOLICITORS : Unrepresented (Pl) Minter Ellison CATCHWORDS : Appeal against decision of Equal Opportunity Tribunal; Original jurisdiction of Supreme Court; Supervisory jurisdiction over Administrative Appeals Tribunal Anti Discrimination Act 1977 ACTS CITED : Anti Discrimination (Further Amendment) Act 1981 Administrative Decisions Tribunal Act 1997 Supreme Court Act 1970 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 CASES CITED : Haines v Leves (1987) 8 NSWLR 442 R v Watson ex parte Armstrong (1976) 136 CLR 248 Livesey v NSW Bar Association (1983) 151 CLR 288 DECISION : Ref para 113

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW

KIRBY J

Friday 25 February 2000

30109/98 - RAM B MISHRA v UNIVERSITY OF TECHNOLOGY, SYDNEY

JUDGMENT

HIS HONOUR:

Background 1 On 29 March 1991, Mr Mishra enrolled as a candidate for the degree of Master of Engineering (Electrical) at the University of Technology ("the University")(the defendant). On 6 April 1995, Mr Mishra was awarded that degree. 2 On 25 September 1995, Mr Mishra made a complaint against the University to the Anti Discrimination Board. He alleged that he suffered racial discrimination whilst enrolled as a student. Mr Mishra is Indian. 3 A complaint to the Anti Discrimination Board is required to be made within six months. Mr Mishra was well outside that time. The Board, however, has a discretion to extend time. It did so in Mr Mishra's case. It thereafter investigated his complaint. 4 On 20 October 1997, the Anti Discrimination Board determined, however, that there had been no discrimination based upon race. It dismissed Mr Mishra's complaint. Mr Mishra appealed to the Equal Opportunity Tribunal, which was constituted by three members. The Chairperson was Judge Murrell. 5 During the course of a hearing, Mr Mishra accused Judge Murrell of lying. He asserted that she had made certain statements, which she denied. The statements did not appear in the transcript. Mr Mishra asserted that the transcript had been altered. He sought to have Judge Murrell replaced. He wrote a letter on 9 October 1998 to the Tribunal in these terms: "The hearing will be remain postponed until new Judge (not Judge, Murrell) is appointed. And, new date will be fixed after discussing the both parties. I have requested to Premier about this problem. I am sure Premier will find solution of this problem." 6 Mr Mishra was unrepresented before the Tribunal. Although he did not formally apply to Judge Murrell that she should disqualify herself, Judge Murrell treated his letter as an application that she should do so. She dismissed that application on 14 October 1998 with these words: "I am not aware of any manner in which I have misled or lied to the complainant or said anything else of a dishonest or misleading nature or anything else which might form a foundation for any reasonable belief on his part that I am biased or for some other reason ought to disqualify myself." 7 Mr Mishra thereafter repeatedly failed to attend the Tribunal on days which had been set aside for the hearing of his appeal. On 14 October 1998, on the application of the University, the proceedings were dismissed under s111(1) of the Anti Discrimination Act for want of prosecution. In the course of her judgment, Judge Murrell said this: "Perhaps more importantly, having heard the complainant's evidence in chief, which was given in relation to a merits hearing, it is the Tribunal's view that there is no evidence whatsoever indicating less favourable treatment of the complainant by the respondent on the ground of race." 8 On 3 November 1998, Mr Mishra issued a Summons in the Supreme Court seeking the following orders: "(1) The order of the Administrative Decisions Tribunal (Equal Opportunity Division) made on 16th October 1998, in File No. 23 of 1998, dismissed the complaint and ordering the pay cost. (2) An order that the decision of the Tribunal be set aside. (3) An order that the complaint be remitted for hearing. (4) Cost." 9 The University responded by filing a Notice of Motion. The Motion sought to have Mr Mishra's Summons dismissed under Pt 13 r5 of the Supreme Court Rules. The University maintained that there was no jurisdiction in the Supreme Court to hear Mr Mishra's appeal. 10 It is convenient to deal with the jurisdictional issue first.