RAHMAN v NEW SOUTH GLOBAL PTY LTD [2005] NSWSC 1249

New South Wales Supreme Court

CITATION : RAHMAN v NEW SOUTH GLOBAL PTY LTD [2005] NSWSC 1249

HEARING DATE(S) : 14-16 November 2005

JUDGMENT DATE : 9 December 2005

JUDGMENT OF : Hulme J at 1

DECISION : See paragraph 33

M Tabibar Rahman PARTIES : Institute of Languages New South Global Pty Ltd

FILE NUMBER(S) : SC 30105/04

Plaintiff: In person COUNSEL : Defendant: G Carolan

Plaintiff: In person SOLICITORS : Defendant: Bartier Perry

LOWER COURT JURISDICTION :

- 14 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

Friday, 9 December 2005 30105/04

M Tabibar RAHMAN v INSTUTUTE OF LANGUAGES NEW SOUTH GLOBAL PTY LTD

JUDGMENT 1 HIS HONOUR: By Summons filed on 3 December 2004 the Plaintiff in these proceedings claimed:- "1. The Appellant/Plaintiff seeks leave to appeal and appeal pursuant to Part 2, Div.6, s45, s105, s106 & s107 Supreme Act 1970 & Chapter 7, Part 2, s119 ADT Act 1977 against ADT decisions. 2. (Please see the attached sheet)." 2 There were two attached sheets. One extended to page 17 and the other contained a further 14 pages. Three decisions were identified as the subject of the appeal, these being:- (a) One made on 5 November 2004 by the New South Wales Administrative Decisions Tribunal Appeal Panel (constituted by Magistrate Hennessy, Ms Britton and Ms Bolt). (b) One of 7 November 2003 by the Administrative Decisions Tribunal Equal Opportunity Division (constituted by Messrs Innes and McDonald and Ms Quail), and (c) One of 7 October 2003 of the New South Wales Administrative Decisions Tribunal Appeal Panel (constituted by Magistrate Hennessy, Professor Reece and Ms Antonios). 3 It appears that the origin of events which led to the proceedings before the Administrative Decisions Tribunal (hereinafter referred to as ADT) and now this Court lay in a requirement of the Department of Education and Training, by whom the Plaintiff was employed for a time and with whom he wished to continue employment, that the Plaintiff who is not a native born Australian undergo a test called the "Professional English Assessment for Teachers" sometimes called "PEAT". This he did on 27 October 2001. 4 He received a test result on 7 November and, to quote from his Summons, "was really shocked and surprised". He applied for a re-mark and while there was some change, the result did not satisfy him and was apparently not sufficient for his employment to continue. On 7 January 2002 he wrote to the Anti-Discrimination Board. The heading indicates the flavour of much of the contents of the letter:- "In justice, hidden illegal/illicit practices in the Examination Assessment Criterion and Racial Biases for the "Professional English Assessment for Teachers – (PEAT)" by the Institute of Languages The University of New South Wales." 5 On or about 14 November his complaint to the Anti-Discrimination Board was rejected, a letter of that date from the President of the Board observing:- § "It is my view that Mr Rahman is mistaken in his allegations that he was discriminated against by the UNSW on the ground of his race… § Mr Rahman has failed to show that he was treated less favourably than other test cohorts who undertook the PEAT exam, or that the assessment criteria used by the UNSW had a disparate impact upon him because of his race. § As such, his complaint presents less than a remote possibility of merit and should therefore be declined as misconceived and lacking in substance under Section 90(1) of the NSW Anti-Discrimination Act, 1977." 6 On 30 November 2002 the Plaintiff required referral of his complaint to the Equity Opportunity Division of the ADT. Section 94 of the Anti-Discrimination Act as it then was provided for such to occur. 7 It is clear that there were difficulties there, even at an interlocutory stage. The judgment of the ADT Appeal Panel of 7 October 2003 records that those proceedings were an appeal from certain interlocutory decisions of the Equal Opportunity Division. The reasons record that written submissions provided by the Plaintiff, which the Panel took as the basis for his appeal dealt with the following points:- 1. Refusal to grant an adjournment of the proceedings. 2. Referral of matter to mediation without consent. 3. Carol Kirby's representation of New South Global Pty Ltd. 4. Failure to deal appropriately with the non-production of documents under Summons. 5. Bias of judicial member Graeme Innes. 8 The Reasons also record that at an early stage the University of New South Wales had submitted that the proper Respondent to the proceedings was New South Global Limited and not the Vice Chancellor of the University, that the legal representative of New South Global Limited had indicated that the Institute of Languages was a part of that company albeit the company was wholly owned by the University, that the company was substituted as Respondent and that the Plaintiff had agreed to that change. It is not a matter that I have to decide but some confusion by the Plaintiff as to the identity of the proper Respondent is understandable. Two booklets entitled "PEAT… Information for Candidates and Exemplar" gives the firm impression that the test is conducted by a body or group going by the name "Institute of Languages" and that that body forms part of the University of New South Wales. The booklets seem to make no mention of "New South Global…" 9 The Reasons of 7 October deal with each of the 5 points listed above, holding that they were not made out and the Panel's order was that the appeal be dismissed. 10 The decision of 7 November 2003 was by the Equal Opportunity Division of the ADT and dealt with the substantive issues involved in the Plaintiff's appeal to that body. It is apparent from the reasons given that evidence was given by the Plaintiff, a Kathleen Lane and a Dr Jill Murray. The Tribunal also had before it a number of documents including the assessments made by various markers who had marked the Plaintiff's test. The Tribunal made findings as to this evidence and concluded that there was no basis for the Plaintiff's allegations of discrimination and dismissed his complaint. 11 The Plaintiff again appealed and the decision of 5 November 2004 by the ADT Appeal Panel records the result of that appeal and the Panel's reasons for it. It is convenient to quote or summarise at a little length, and by reference to the headings and paragraph numbers in those Reasons, the more salient of the Panel's conclusions.