Reported Decision : 57 NSWLR 376 New South Wales Court of Appeal CITATION : TU v UNIVERSITY OF SYDNEY [2003] NSWCA 170 HEARING DATE(S) : 25 June 2003 JUDGMENT DATE : 18 July 2003 JUDGMENT OF : Sheller JA at 1; Beazley JA at 35; Tobias JA at 36 DECISION : 1 Appeal allowed; 2 Respondent's notice of motion dismissed; 3 Set aside the orders of the Appeal Panel made on 31 May and 13 August 2002. In lieu thereof, order that the appeal to the Appeal Panel be upheld, the orders made by the Tribunal on 10 January 2001 dismissing the appellant's complaint and any consequential costs orders be set aside and that the complaint be remitted to the Administrative Decisions Tribunal for determination of the complaint as referred to the Tribunal under s94 of the Anti-Discrimination Act 1977; 4 The respondent should pay the appellant's costs of this appeal and of the appeal to the Appeal Panel. The costs of the proceedings to date in the Administrative Decisions Tribunal should be in the discretion of the Tribunal constituted to hear the complaint. CATCHWORDS : Administrative Law - Administrative Decisions Tribunal - Replacement of Tribunal Member - Unavailability of Member - Lack of consent of parties - Constitution of new Tribunal - Whether discretion of Acting President - Tribunal wrongly constituted - Appealable decision - Administrative Decisions Tribunal Act 1997 ss 22, 79, 112 Administrative Decisions Tribunal Act 1977 LEGISLATION CITED : Anti-Discrimination Act 1977 Supreme Court Act 1970 Johns v Australian Securities Commission (1993) 178 CLR 408 CASES CITED : Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 PARTIES : John-Hasio Kong Tu - Appellant Unviersity of Sydney - Respondent FILE NUMBER(S) : CA 40956/02 COUNSEL : B J Toomey QC/P Gow - Appellant J N West QC/J Oakley - Respondent SOLICITORS : Harish Prasad & Associates - Appellant Minter Ellison - Respondent LOWER COURT Administrative Decisions Tribunal JURISDICTION : LOWER COURT ADT 019002 FILE NUMBER(S) : LOWER COURT Appel Panel JUDICIAL OFFICER : IN THTE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40956/02 ADT 019002 SHELLER JA BEAZLEY JA TOBIAS JA TU v UNIVERSITY OF SYDNEY The appellant lodged a complaint against the respondent with the President of the Anti-Discrimination Board, who referred the complaint to the Administrative Decisions Tribunal. Some two years later, in December 2000, the matter was set down for hearing. Due to illness the appellant was not able to attend the Tribunal hearing, however his counsel and instructing solicitor were present. The Tribunal was constituted by Judicial Member Lees and Members Edwards and Nemeth de Bikal. The appellant's counsel opened the case, outlining the general nature of the complaint. The Judicial Member of the Tribunal then announced that the matter would be adjourned and that the Tribunal would reconvene two days later. On that day, the appellant was again unable to attend due to illness. After lengthy debate, the matter was adjourned to the following month. On 10 January 2001, the Tribunal was differently constituted in that the Judicial Member was R Bartley. When the matter was called on, the Judicial Member announced that the previous chairperson of the Tribunal had had a death in the family and was in Melbourne. The Judicial Member asked if either party had an objection to the substitution. There was no objection on behalf of the respondent. However, Ms Winters on behalf of the appellant said that the appellant did not consent to the reconstitution of the Tribunal and sought an adjournment. The Tribunal refused the application. Counsel for the appellant then applied for a further adjournment to allow the appellant to appeal from the Tribunal's decision. That application was also refused. The Appellant and his counsel withdrew from the proceedings. The Respondent renewed its application for summary dismissal of the complaint. The Tribunal granted that application. The appellant appealed to the Administrative Decisions Tribunal Appeal Panel, which dismissed the appeal on the basis that the exercise of discretion by the Acting President was not an 'appealable decision' within the meaning of s112 of the Administrative Decisions Tribunal Act 1997. HELD (Per Sheller JA, Beazley and Tobias JJA agreeing): 1. Sections 79 and 22 of the Administrative Decisions Tribunal Act 1997 between them describe two different presidential functions, the first of replacing a member in the circumstances described if the parties consent and the second of giving directions as to the members who are to constitute the Tribunal for particular proceedings after having regard to the matters stipulated. In this instance, the Acting President could not exercise power under s79(1) because the appellant did not consent. Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 referred to. 2. For the Tribunal to be reconstituted under s79(1), the parties must give their consent. 3. If the power under s22 has to be used, a new Tribunal is constituted, replacing the Tribunal as previously constituted. The valid exercise of this power requires the President or relevant Divisional Head to have regard to the four matters listed in that section. In the absence of regard being had to those matters, no proper basis exists for the exercise of power under that section. Johns v Australian Securities Commission (1993) 178 CLR 408 referred to; Minister for Urban Affairs and Planing v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 referred to. 4. The failure of the Tribunal to deal with the fact that it is not properly constituted is an appealable decision within the meaning of s112 of the Administrative Decisions Tribunal Act 1997. Legislation cited: Administrative Decisions Tribunal Act 1977 Anti-Discrimination Act 1977 Supreme Court Act 1970 Cases cited; Johns v Australian Securities Commission (1993) 178 CLR 408 Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 ORDERS 1. Appeal allowed; 2. Respondent's notice of motion dismissed; 3. Set aside the orders of the Appeal Panel made on 31 May and 13 August 2002. In lieu thereof, order that the appeal to the Appeal Panel be upheld, the orders made by the Tribunal on 10 January 2001 dismissing the appellant's complaint and any consequential costs orders be set aside and that the complaint be remitted to the Administrative Decisions Tribunal for determination of the complaint as referred to the Tribunal under s94 of the Anti-Discrimination Act 1977; 4. The respondent should pay the appellant's costs of this appeal and of the appeal to the Appeal Panel. The costs of the proceedings to date in the Administrative Decisions Tribunal should be in the discretion of the Tribunal constituted to hear the complaint. ********** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40956/02 ADT 019002 SHELLER JA BEAZLEY JA TOBIAS JA Friday, 18 July 2003 TU v UNIVERSITY OF SYDNEY Judgment 1 SHELLER JA: Introduction The appellant, John Hasio-Kong Tu, lodged a complaint alleging a contravention of the Anti-Discrimination Act 1977 with the President of the Anti-Discrimination Board. On 29 December 1998 or 6 January 1999 the complaint was referred to the Administrative Decisions Tribunal (ADT). The complaint was against the respondent, University of Sydney. There followed a period of two years during which events occurred apparently in preparation for the inquiry into the complaint by the ADT. Finally that inquiry was set down to begin on 18 December 2000. Five days, from 18 to 22 December 2000 were set aside for the hearing. Due to illness the appellant was not able to attend the Tribunal hearing on 18 December 2000 although his counsel and instructing solicitor were present. On that day the Tribunal was constituted by Judicial Member Lees and Members Edwards and Nemeth de Bikal. On 18 December 2000 the President's report (s94(1) of the Anti-Discrimination Act ) was tendered by counsel for the appellant to found the Tribunal's jurisdiction. 2 The appellant's counsel opened the case in the sense of outlining to the Tribunal the general nature of the complaint, which was one of race discrimination. The Judicial Member then announced that the matter would be adjourned and the Tribunal would re-convene on Wednesday, 20 December 2000. On that date the appellant was unable to attend due to illness. After lengthy debate about several matters including security for costs, a proposed application for dismissal of the complaint pursuant to s111 of the Anti-Discrimination Act and re-convening the Tribunal, the matter was adjourned until 10 January 2001 and that day and 11 and 12 January were set aside for hearing. 3 On 10 January 2001 the Tribunal was differently constituted. Members Edwards and Nemeth de Bikal remained but the Judicial Member was R Bartley. When the matter was called on the Judicial Member announced, after appearances: "You are probably aware that the previous chairperson, lady, has had a death in her family in Melbourne, and has to go to Melbourne, and I've been asked to chair the matter so that the parties won't be inconvenienced. Have either of the parties any objection to me substituting?" 4 There was no objection on behalf of the respondent. However, Ms Winters on behalf of the appellant said: "It's not an objection, but the legislation as I understand it requires the consent of the parties, and the complainant does not consent to the reconstitution of the Tribunal." 5 The Judicial Member then said: "Yes, I probably could have put it better for you, yes, you are quite correct." Ms Winters referred to s79 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to which the Judicial Member responded: "That's right yes and does the respondent consent to the Tribunal being reconstituted." The respondent's representative indicated that it did. The Judicial Member then said: "Well I'll have to proceed from 79(1), I think, to the next one in that case Ms Winters. 79(3) says, 'If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with the Act.' Is there any comment on that at all Ms Winters? I'm not quite certain what 'reconsidered' means." 6 Section 79 of the ADT Act provides as follows: "79 Reconstitution of Tribunal during hearing (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if: (a) the member becomes unavailable for any reason, or ceases to be a member, before the matter is determined, and (b) the parties consent. (2) The Tribunal as so reconstituted is to have regard to the evidence and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. (3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal constituted in accordance with this Act. (4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings." 7 Ms Winters referred to a number of matters of inconvenience and reiterated that the appellant was not prepared to consent to the reconstitution of the Tribunal. She submitted that the most appropriate course of action would be to adjourn the matter until Ms Lees could be a member of the Tribunal to finalise the proceedings. Ms Winters said that her application was simply that the entire proceedings be adjourned to an appropriate time, when Ms Lees could hear the entire enquiry. Further discussion ensued about s79. The Judicial Member gave a ruling as follows: "2 BARTLEY: On 3 December 1996 the complaint in this matter was lodged with the Anti-Discrimination Board and referred to the Tribunal on 29 December 1998. 3 The first directions hearing was on 18 August 1999. Ms Winters has submitted that the formally constituted Tribunal with Ms Lees as Judicial Member on the last occasion, whilst she was to continue with the matter today. Due to the bereavement in Melbourne Ms Lees left for Melbourne yesterday and due to a close association with the people involved she will be there for at least the rest of the week. 4 In the meantime the President has directed that I replace Ms Lees in the Tribunal. 5 The matter has a long history, and the Court time is valuable. The administration and the President have gone to substantial trouble and difficulty to ensure that the matter proceed today. 6 Whilst the Act makes special provision under section 79 for situations such as this, and if the parties do not agree to the Judicial Member being replaced, then it makes provision for the Tribunal to proceed in an alternative manner. 7 In deciding whether the Tribunal should proceed in an alternative manner it is proper to consider the history of the matter. It has been listed on many occasions, 18 August 1999, 27 October 1999, 17 November 1999, 15 December 1999, 2 February 2000, 30 June 2000, and there was other dates [sic] also on which the matter was listed, 27 October 1999, 2 March 2000, 5 April 2000, 18 December 2000, 20 December 2000. 8 The matter has been subject, for various reasons, to substantial delays. It does appear that the fact that the chairman of the Tribunal has been replaced makes little difference to the arrangements that have been made for the day. Both parties are here, there is no reason why the matter should not proceed, and the direction is already given, and the application by Ms Winters for me in effect to disbar myself is refused, and the Tribunal will continue with the hearing now." 8 The appellant's representative then applied for a further adjournment to allow the appellant to appeal from the Tribunal's decision. The Tribunal gave the following ruling in respect of that application: "1 BARTLEY: At the outset of proceedings this morning Ms Winters informed the Tribunal she did not consent under section 79(1) to Miss Lees being replaced by Mr Bartley as Judicial Member. She sought an adjournment until Ms Lees returned. Ms Oakley for the respondent opposed the application, and both addresses are set out in the transcript. 2. The Tribunal, for reasons set out in the transcript, also, refused the application for the adjournment. 3 An appeal against this decision was lodged during an adjournment. 4. Ms Winters has now applied for another adjournment until the appeal has been disposed of for the reasons set out in the transcript. 5 Ms Oakley has opposed the application also for reasons set out in the transcript. 6 In the Tribunal's view the reconstituted Tribunal is now governed by section 79(3) and we are to reconsider they are to be reconsidered by the Tribunal in accordance with the Act [sic]. 7 The complaint in the present case was made on 1 December 1996 and has been listed at least eleven times. (See earlier Judgment) Since then the President has made every effort under section 79(1) to get the matter on train today. It is time, in our view, for the proceedings to be determined. The Tribunal has set aside three days for the hearing and all parties are present. The fact that Ms Lees is not present does not appear to matter in any way as it can proceed as if she were here. 8 Whilst notwithstanding an appeal has been lodged, and having regard to all the matters raised before us, we are of the view that the application for an adjournment should be refused. 9 The application for adjournment is refused." 9 After that decision was given and a short adjournment, Ms Winters indicated to the Tribunal that her client wished to pursue his complaint once the appeal had been determined regardless of the outcome of that appeal. However, her instructions were to take no further part in the proceedings before the Tribunal that day or for the remainder of the week or until there was some decision of the appeal panel. This led to an application by the respondent for the dismissal of the proceedings. The Tribunal ruled as follows: "2 On return from the luncheon adjournment the Tribunal declined to grant any further adjournment to the complainant based on the fact he had lodged an appeal against an earlier decision of the Tribunal today. 3 Ms Winters was granted a short adjournment and on return she stated there were two matters that she wished to make known to the Tribunal. 4 One, her client does wish to pursue his complaint, and he wished to pursue it once the appeal had been determined, regardless of the outcome of that appeal, that is, the appeal that was lodged this morning in relation to the Tribunal's earlier decision concerning the reconstitution of the Tribunal. 5 Secondly, however, in relation to the most recent decision of the Tribunal her client has instructed her and her instructing solicitor that he wished to take no further part in proceedings before the Tribunal today or for the remainder of the week or until there was some decision of the appeal panel. 6 On the basis of these instructions she has asked leave to be excused from attendance. Ms Winters was excused by the Tribunal. 7 Following the withdrawal of Ms Winters her instructing solicitor and the complainant, Ms Oakley made an application that the complaint be dismissed under section 111 of the Anti-Discrimination Act , or if the Tribunal is not of mind to grant that application there be security for costs. 8 In our view it is proper that the first application be acceded [to] and that the complaint be dismissed under section 111 on the basis that the complainant, his solicitor and counsel, are no longer before the Court. 9 This in our view, leaves us without a party to the proceedings and falls within the terms of section 111, for any other reason. [sic] 10 It is not necessary to deal with the second application by Ms Oakley, and the complaint is dismissed." 10 The notice of appeal to the Tribunal constituted by an Appeal Panel was filed by the appellant on the same day. In its amended form it was directed to what were described as "The First Adjournment Application Decision", "The Second Adjournment Application Decision", and "The Dismissal Decision". Paragraph 5 in the first section was "The Tribunal erred in law by misconstruing s79 of the Administrative Decisions Tribunal Act 1997". Paragraph 7 in the second section was "The Tribunal erred in law in finding that it was governed by s79(3) of the Administrative Decisions Tribunal Act when the preconditions set out in s79(1) have not been met". Under a final heading "Review of the Merits of the Decisions" were found the following paragraphs: "16 If it is necessary for the Appeal Panel to review the merits of the decisions in order for it to set aside the decision of the Tribunal, and to make a decision in substitution for the decision to be set aside, then the Appellant seeks leave to extend the appeal to a review of the merits of the decisions to the extent necessary. 17 The Appellant applied to have the proceedings adjourned as the Tribunal had been reconstituted without the requirements of s79(1) of the Administrative Decisions Tribunal Act having been satisfied. 18 In its reasons for decision the Tribunal stated that Judicial Member Lees would be unavailable for one week. A period of absence of only one week is not sufficient to warrant reconstitution of the Tribunal, in circumstances when the Tribunal is part heard." Decision of the Appeal Panel 11 The hearing before the Appeal Panel took place on 12 March 2002. In the course of her submissions, Ms Winters, in answer to questions from his Honour Judge O'Connor, the President of the ADT, who was sitting as a member of the Appeal Panel, said that the decision to reconstitute the Tribunal was not under challenge. That was said in the context of the judge's concern about his position. It appears that at the relevant time her Honour Judge Latham was the Acting President. Ms Winters argued a point that Judicial Member Lees was not unavailable within the meaning of s79 at the time set down for the hearing in January 2001. The following interchange took place between Judicial Member Rees and Ms Winters: "REES: Ms Winters, I wonder if I could just ask you a question here? If we assume – proceed on what seems to be some hypothetically agreed facts anyway that it was the Acting President that made the decision pursuant to section 79, as I understand your submission you're saying that the Acting President acted ultra vires in those circumstances. Do we have any jurisdiction to determine whether the Acting President of the Tribunal has acted ultra vires, and did Mr Bartley and his colleagues at first instance have any jurisdiction to deal with that? WINTERS: In my submission, it is not necessary for this panel to make that determination because this panel has been asked to hear the appeal against the three decisions of the Tribunal constituted by Mr Bartley. The improper reconstitution of the Tribunal is the reason for the adjournment having been sought and in the circumstances of there having been a submission that there was an improperly constituted Tribunal, my submission here today is that that was a proper reason for an adjournment to have been granted, it was quite clearly only going to be a short adjournment. It was not as though there had been some indication there would be many months before the original Tribunal could have been reconstituted and then the subsequent decisions made by that Tribunal are what are here today under challenge. The only other course open to an appellant in a situation like this would be to have gone straight to the Supreme Court. Now, there is a lot of discouraging legislation on that point – on that approach in the Administrative Decisions Tribunal Act to start with and a most effectively and efficient means of resolving the ultimate termination of the complaint is the appeal panel here, properly constituted, with due power, functions, etcetera to be able to set aside the decisions made by the Tribunal constituted by Mr Bartley and then reconsider the matter from there. If the appeal were to be upheld on all three counts, I mean I have no idea where Ms Lees would be for example, whether she is still a member of the Tribunal. So obviously, the matter would then need to be in a separate exercise of power, reconsidered by the President with a view to considering whether the Tribunal should be reconstituted, if it's necessary to reconstitute it, if the appeal is upheld. REES: But isn't your only argument that you can challenge the decision not to grant you an adjournment on the basis that arguably you should have been given the right to go somewhere else to challenge the exercise of power under section 79, but we can't determine that the Acting President acted ultra vires because we don't have the jurisdiction to do that. WINTERS: But what I am submitting is it is not necessary to go that far, that it is only necessary to consider whether, in the circumstances of a submission having been put, that the Tribunal was improperly constituted that the Tribunal erred by failing to adjourn. REES: But was the submission put that you wanted an adjournment to go elsewhere to challenge the constitution of the Tribunal and therefore challenge the exercise of the Acting President's power? WINTERS: No, it wasn't put in those terms. It was put on a practical basis that if there was a problem with the constitution of the Tribunal because Ms Lees was not available from a statutory point of view, then an appropriate and practical course would have been to grant an adjournment. Now, a failure to grant that adjournment in those circumstances, in my submission, is firstly an error of law. It is a decision that was so unreasonable, no reasonable maker would have made it. But secondly, if necessary, the notice of appeal seeks leave to review the merits of the decision and if be necessary to go that step, that leave is sought. The merits of that decision ought to be reviewed by this appeal panel." 12 The Appeal Panel gave its decision on 31 May 2002. Under the heading "Alleged Errors of Law" and the sub-heading "The First Adjournment Application" the Appeal Panel referred to the reconstitution of the Tribunal and ss79 and 22 of the ADT Act. In the course of dealing with the first adjournment application the Appeal Panel said: "37 The main objection, and the one most pressed in oral submissions, relates to an alleged error of law on the part of the Tribunal in construing s79 of the Act. 38 The appeal seeks, in effect, to put in issue the exercise of discretion by the Acting President in deciding to reconstitute the Tribunal. In our view this is not an 'appealable decision' within the meaning of s112 of the Tribunal Act. As noted earlier, under s112(1)(a) an 'appealable decision' of the Tribunal 'is a decision of the Tribunal … made in proceedings for … an original decision …' (Emphasis added by the Appeal Panel.) 39 The challenge under s79 is to the exercise of a statutory discretion vested in the President as a Head of Jurisdiction. The question of whether the President's powers of this kind have been exercised properly is not a question relating to a 'decision of the Tribunal … made in proceedings …'. It is a decision made as part of the general administration of the Tribunal. It is made, necessarily, outside the proceedings though it may occur (as here) after the proceedings have commenced because of special circumstances. It belongs to that class of statutory administrative decisions which is judicially reviewable, and the appropriate forum is the Supreme Court. 40 In our view the Tribunal below need not have entertained any submissions from counsel in relation to the meaning and effect of s79. The Tribunal's constitution accorded with the requirements applying to panels hearing ADA complaints (as to which see Tribunal Act, s22(4) and Schedule 2, Part 2, cl 3). The position may be different if the Tribunal had not been constituted in accordance with the Act, in which case a jurisdictional issue may arise: see, for example, Warehouse Group (Australia) P/L v Bevendale Pty Ltd & Ors [2002] VSC 108. 41 The question of whether the President should have ascertained the attitude of the parties before reconstituting the panel, and only then moved to exercise any powers under s79(3), were not ones for the Tribunal to address or determine. The Acting President could also have been asked to reconsider the exercise of that power, as it was clearly not spent just because it had been exercised (see s48 Interpretation Act 1987; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11). 42 Decisions of the President under s79 are not 'appealable decisions' within the meaning of s112 of the Tribunal Act." 13 After considering other grounds of appeal, the Tribunal stated that the appeal was in its view entirely without merit and dismissed it. 14 Section 112 of the ADT Act which is in Chapter 7 "Appeals from Decisions of Tribunals" Pt 1 "Internal appeal rights" provides as follows: "112 What is an appealable decision? (1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) a review of a reviewable decision. (2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71(2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal. (3) A decision of an Appeal Panel is not an appealable decision for the purposes of this Part." 15 Section 118 of the Anti-Discrimination Act provides that an order or other decision made by the Tribunal under this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the [ADT] Act by a party to the proceedings in which the order or decision is made. Appeal to the Court of Appeal 16 Such appeals are provided for in Part 2 "Appeals to Supreme Court" of Chapter 7. Section 119(1) provides as follows: "119 Right of appeal to the Supreme Court (1) A party to proceedings before an Appeal Panel of the Tribunal (whether in proceedings under Part 1 or otherwise) may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings." 17 It should be observed that s122 in Part 2 of Chapter 7 provides that nothing in the Act (except s123) affects the power of the Supreme Court in the exercise of its original jurisdiction, to review the decisions of the Tribunal. Section 123 empowers the Supreme Court in described circumstances to decline to deal with an application for review. It is accepted that the appeal was assigned to this Court pursuant to s48(2)(f) of the Supreme Court Act 1970. 18 As filed, the notice of appeal contained one ground as follows: "1. In holding that the Tribunal which heard this matter in the Equal Opportunity Division of the Administrative Decisions Tribunal on 10 January 2001 was properly constituted under the Administrative Decisions Tribunal Act 1997 (as amended) ('the Act'), the Appeal Panel erred in that: (a) the Appellant did not consent to the matter continuing before a Tribunal differently constituted from that which had begun the hearing in accordance with Section 79(1)(b) of the Act; (b) the Tribunal with its substitute member had not been constituted (in the manner required by Section 22 of the Act) to hear the matter as provided for in Section 79(3) of the Act; (c) the Tribunal had no power or jurisdiction to hear and determine the matter as it purported to do; (d) the scheme of the Act requires that consent to reconstitution of the Tribunal be sought under s79(1) before, on refusal of consent, the Tribunal is reconstituted by the President under s22 to proceed with the hearing under s79(3), and this procedure was not follows: and (e) the powers under s79 were in any event never enlivened because the member sought to be replaced was not 'unavailable' within the meaning of that word in s79(1)(a) of the Act." 19 When the matter was called on for hearing, the respondent moved on a notice of motion to have the appeal struck out as incompetent pursuant to Part 51 rule 25 of the Supreme Court Rules. During the course of argument the appellant sought and was granted leave to amend the notice of appeal to add a further ground as follows: "2. Alternatively, the Appeal Panel erred in: (a) holding that the appeal to that panel sought 'in effect to put in issue the exercise by the Acting President in deciding to reconstitute the Tribunal' (Red Book 35 A-C) when the Appellant's complaint was that the Tribunal itself had erred in law in its construction of s79 of the Administrative Decisions Tribunal Act (Red Book 34 Y-Z); (b) failing to consider and uphold the Appellant's challenge to the decision of the Tribunal to continue the hearing on 10 January 2001 despite the provisions of s79 of the Act; (c) failing to consider and uphold the Appellant's complaint that the member of the Tribunal sought to be replaced was not 'unavailable' in the relevant sense so as to enliven the reconstitution of the Tribunal under s79 of the Act." Discussion 20 The validity and fate of this appeal depend upon whether the Tribunal, which, on 10 January 2001, refused adjournments and dismissed the proceedings, was validly constituted. If it was, the appeal to this Court inevitably fails. If it was not, there is an initial question of whether the impropriety of a Tribunal, improperly constituted, proceeding to dismiss an application, can be adjudged by the Tribunal as constituted or the Appeal Panel or both of them. I am satisfied, from what was said by the Judicial Member on 10 January 2001, that the Tribunal as constituted on that day recognised that, within the meaning of s79 of the ADT Act, the consideration of the matter, namely the appellant's complaint, by the Tribunal had commenced. 21 Subsection (1) empowered, in the circumstances then obtaining, the Acting President to replace one of the members constituting the Tribunal if that member became unavailable for any reason and if the parties consented. The appellant did not consent so the condition for the exercise of that power was not met and the Tribunal was not, within the meaning of subs(2) "so reconstituted". That being so, according to subs(3), the proceedings were to be reconsidered by the Tribunal constituted in accordance with the Act. In Lloyd v Veterinary Surgeons Investigating Committee [2002] NSWCA 224 at para 10 of my judgment I said, with the agreement of Hodgson JA and Ipp AJA: "This section establishes two courses to be followed where, as in the present case, a member of a Tribunal ceases to be a member before the matter is determined. If the parties all consent the President may replace that member. If a party does not consent, a new Tribunal is constituted 'in accordance with [the] Act'. There is no reason why the new Tribunal constituted under s79(3) should not, as in the present case, include members of the previously constituted Tribunal. A large part of the debate before the President and before the Appeal Panel turned upon whether or not the newly constituted Tribunal was engaged in a 're-hearing'. I do not understand there to be any debate now but that the newly constituted Tribunal starts the hearing afresh." 22 Section 22 of the ADT Act provides for the constitution of the Tribunal for any particular proceedings. Subsection (2) enables the President, or relevant Divisional Head (subject to any direction of the President), to give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Subsection (3) requires that in giving such a direction the President or relevant Divisional Head has regard to matters which are then listed in four paragraphs as follows: "(a) the degree of public importance or complexity of the subject-matter of the proceedings, (b) if the proceedings concern the review of a reviewable decision – the nature and status of the office of the administrator who made the reviewable decision, (c) the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings, (d) such other matters as the President or the Divisional Head considers relevant." 23 To my mind it is clear that between them ss79 and 22 describe two different presidential functions, the first of replacing a member in the circumstances described if the parties consent, and the second of giving directions as to the members who are to constitute the Tribunal for particular proceedings after having regard to the matters stipulated. In the present case it is clear that the Acting President sought to exercise power under s79(1) but could not do so because the appellant did not consent. 24 Convenience suggests that the President, wishing to exercise power under s79(1), should first obtain consent. If consent is not forthcoming from the parties or one of them the President can turn to giving directions as to the members who are to constitute the Tribunal pursuant to s22. The transcript of 10 January 2001 shows that the Acting President purported to exercise power under s79(1) to replace Judicial Member Lees subject to the parties consenting. There is not the slightest suggestion in anything that was said that day that when, during the hearing, it was discovered that the consent of one of the parties would not be forthcoming, the Acting President turned attention to giving directions pursuant to s22. The matter proceeded, as did the argument before us, on the basis that if consent was not given, automatically the Tribunal could be reconstituted under s22 to include the two members of Tribunal as constituted earlier, together with the replacement. But the results of the exercise of each of the powers are quite different. Section 79(1) enables the existing Tribunal constituted for the purposes of the proceedings to continue with a replacement of one of the members. If the power under s22 has to be used, which is what s79(3) contemplates, a new Tribunal is constituted and replaces the Tribunal "as previously constituted". The consequences in terms of what the Tribunal with a replacement and what the new Tribunal may do and have regard to are marked out by ss79(2) and (4). 25 Although it was suggested during argument that it was open to the respondent to rely on s22 as a source of power to support the valid constitution of the Tribunal on 10 January 2001, I do not consider that that head of power was so available. It is true that "a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed": Johns v Australian Securities Commission (1993) 178 CLR 408 at 426. However, this is only so provided that any conditions necessary for the exercise of the power have been satisfied: Minister for Urban Affairs and Planning v Rosemount Estate Pty Ltd & Ors (1996) 91 LGERA 31 at 85. In the present case, as I have noted above [22], s22(3) requires that in giving a direction under s22(2) as to the members who are to constitute the Tribunal, the President or relevant Divisional Head is to have regard to four listed matters. In the absence of evidence that the Acting President had regard to those matters when constituting the Tribunal on 10 January 2001, no proper basis exists for application of the principle of an alternative source of power. 26 I have set out the reasons given by the Tribunal as constituted on 10 January 2001 for concluding that it could proceed with the matter. Reference is made to the long history of the matter, to the value of "court" [sic] time and to the fact that the administration and the President had gone to substantial trouble and difficulty to ensure that the matter proceeded that day. In deciding whether it should proceed in what was described as the "alternative manner", which is a reference to s79(3), the Tribunal considered the history of the matter and identified many occasions on which it had been listed. For various reasons the matter had been subject to substantial delays. With due respect none of these matters had any relevance to the question of whether the Tribunal as constituted on 10 January 2001 was properly constituted to hear the proceedings. One can understand the concern and perhaps irritation caused by delay and by the matter not proceeding due to the appellant's illness in December 2000. But what happened in terms of the unavailability of the Judicial Member on 10 January 2001 was no fault of either of the parties. We were told that the appellant's representative first knew of the reconstitution of the Tribunal when she appeared before it on 10 January 2001. Had the Acting President sought the consent of the parties before considering whether it was appropriate to make a replacement under s79(1) and learnt of the appellant's refusal to consent, it may have been possible to constitute a Tribunal pursuant to s22 in time for the proceedings to be reconsidered by that Tribunal on that day. 27 In my opinion, the Tribunal as constituted on 10 January 2001 clearly erred in law in proceeding to deal with the proceedings in the absence of the appellant's consent. It was not constituted in a way that enabled it to do so and accordingly it had no jurisdiction to make the orders it did, most importantly the order summarily to dismiss the proceedings, and those orders are void. 28 There are other aspects of the matter that were raised and require mention. Section 79(1) provides a useful power to the President where a member of a duly constituted Tribunal, after the consideration of a matter by that Tribunal has commenced, becomes unavailable for any reason or ceases to be a member. The appellant argued that Judicial Member Lees was not "unavailable for any reason" within the meaning of para (a). 29 In the present case the proceedings had barely begun and had occupied only parts of two days with no witness evidence. A sensible solution and one suggested by the appellant's representative, since the appellant did not consent to a replacement, was to allow the matter to proceed on a date when all members of the Tribunal as originally constituted were available. In considering s79 it is for the President to decide whether a member is "unavailable for any reason". If a proceeding had occupied many days hearing and all the witnesses had given evidence no doubt, as a matter of discretion, the President would not seek to replace a member if, like Judicial Member Lees, the member to be replaced became unavailable for three or four days due to sickness or other reason. 30 In the present appeal it is unnecessary for us to give any precise meaning of the phrase "unavailable for any reason" and I do not think we should do so. 31 The Appeal Panel, in the passage that I have quoted from its reasons of judgment, saw the appeal as putting in issue the exercise of discretion by the Acting President in deciding to reconstitute the Tribunal. This, the Appeal Panel held, was not an appealable decision within the meaning of s112 of the ADT Act. 32 On 10 January 2001 the Tribunal, as then constituted, expressly or implicitly made several decisions. It decided it was properly constituted to hear the matter. It refused an adjournment to enable the appellant to appeal from that decision. It summarily dismissed the appellant's complaint. The last two decisions could only be made on the basis that the Tribunal was validly constituted to hear the complaint on that day. As the appellant's counsel sought to point out to the Appeal Panel, the challenge was not to the Acting President's exercise of discretion. It was acknowledged that the replacement power under s79(1) was not available in the absence of the appellant's consent. There was no suggestion that, on account of the appellant's refusal to consent, the Acting President had exercised a discretion to constitute a Tribunal under s22 to hear the complaint. The Tribunal was alive to the problem but proceeded erroneously on the basis that without consensual appointment of Mr Bartley as a replacement under s79(1) and without constitution of a Tribunal in the absence of that consent under s22 to hear the complaint, it could decide to proceed because the matter had been listed on many previous occasions and had been subject to substantial delays and both parties were present. The Tribunal failed to deal with the fact that it was not properly constituted. That error vitiated the orders it made and most importantly the order dismissing the complaint. I have no doubt that that was an appealable decision within the meaning of s112 of the ADT Act. 33 The amended notice of appeal sufficiently covers this error. Orders 34 I would propose the following orders: 1. Appeal allowed; 2. Respondent's notice of motion dismissed; 3. Set aside the orders of the Appeal Panel made on 31 May and 13 August 2002. In lieu thereof, order that the appeal to the Appeal Panel be upheld, the orders made by the Tribunal on 10 January 2001 dismissing the appellant's complaint and any consequential costs orders be set aside and that the complaint be remitted to the Administrative Decisions Tribunal for determination of the complaint as referred to the Tribunal under s94 of the Anti-Discrimination Act 1977; 4. The respondent should pay the appellant's costs of this appeal and of the appeal to the Appeal Panel. The costs of the proceedings to date in the Administrative Decisions Tribunal should be in the discretion of the Tribunal constituted to hear the complaint. 35 BEAZLEY JA: I agree with Sheller JA. 36 TOBIAS JA: I agree with Sheller JA. ********** Last Modified: 07/21/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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