Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frost v TAFE Commission [2019] NSWCATAP 292 Hearing dates: 29 November 2019 Date of orders: 04 December 2019 Decision date: 04 December 2019 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President P Molony, Senior Member Decision: (1) Leave to appeal from interlocutory decisions is refused. (2) The appeal is dismissed. Catchwords: APPEAL – where appellant appealed from two interlocutory decisions – where substantive hearing complete except for providing written submissions – whether leave should be given to appeal from two interlocutory decisions Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: None cited Category: Principal judgment Parties: Julie Frost (Appellant) TAFE Commission (Respondent) Representation: Counsel: R Lee (Respondent) Solicitors: Appellant (Self Represented) Minter Ellison (Respondent) File Number(s): AP 19/47943 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Not applicable Date of Decision: 10 September 2019 Before: A Britton, Principal Member File Number(s): 2018/00161029 REASON FOR DECISION Background 1. Ms Frost complained that the TAFE Commission had discriminated against her and victimised her in breach of the Anti-Discrimination Act 1977 (NSW). On 10 May 2018, the President of the Anti-Discrimination referred the complaints to the Tribunal. When preparing the matter for hearing, the Tribunal made several interlocutory decisions including orders on 10 September 2019. Ms Frost did not attend the hearing on that date for reasons which are not relevant to any issue on appeal. 2. Ms Frost has asked for the Appeal Panel's permission to appeal from orders 2 and 7: . . . 2. The request by Ms Frost made on August 2019 seeking full discovery from the respondent of all documents [1/3/17 – 1/8/19] is refused. . . . 7. The respondent's application seeking that Ms Frost pay its costs of the directions hearing on 10 September 2019, is stood over until the conclusion of the proceedings, unless otherwise ordered by the Tribunal. 1. In an oral decision given at the interlocutory hearing on 10 September 2019, the Tribunal gave the following reasons for making these two orders: With respect to the second application made by Ms Frost, the application for "full discovery from the respondent of all documents held or controlled by the respondents or alternatively order all documents pertaining to the applicant to be summoned by the Tribunal". While the term "full discovery" is used, it appears that Ms Frost is asking permission to issue a summons in respect of all documents which relate to her. Approval has been given for a number of summonses to be issued by Ms Frost. A number of her requests for summonses have been refused. The breadth of the class of documents now sought by Ms Frost is so wide as to be oppressive. In addition, given the proximity of the hearing, it would be inappropriate for further summonses to be issued at this point in time. THAT APPLICATION IS REFUSED. . . . The respondent has requested costs in respect of today. It asserts that special circumstances are established, tendering in support a letter of 9 September 2019 to Ms Frost addressing those assertions. This may well not be the last cost application that is received from the respondent in this matter. In the absence of Ms Frost I have decided not to determine that application today, but to determine it at the close of the proceedings. 1. Ms Frost lodged the appeal within the time allowed. Unless the Appeal Panel extends the time for lodging an appeal, an appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)" Civil and Administrative Tribunal Rules 2014, Reg 25(4). Ms Frost received written reasons on 15 October 2019 and lodged the appeal the following day. 2. A party must obtain the Appeal Panel's permission ("leave") to appeal from an interlocutory decision: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(a). If leave is granted, Ms Frost is entitled to appeal "on any question of law": NCAT Act, s 80(2)(b). 3. On 16 October 2019, when Ms Frost lodged the appeal, the Tribunal had not heard her complaints. Ms Frost did not apply to the Appeal Panel for a stay of the substantive proceedings and the complaints were heard on 31 October 2019 and 1 November 2019. Ms Frost says she left the hearing on the second day because she was upset and could not continue. The Tribunal directed the parties to provide further submissions including submissions about whether a non-publication order should be made. The Tribunal also noted that the application by the TAFE Commission for costs of the appearance on 10 September 2019 and the application for costs of the whole proceedings is reserved until determination of the matter. Our understanding is that the Tribunal will deliver the reasons for decision sometime after 24 January 2020. 4. We have not considered Ms Frost's submissions about what happened at the Tribunal hearing and why those circumstances should persuade us to give leave to appeal. The appeal we are considering is from orders made on 10 September 2019. What happened at the hearing on 31 October 2019 and 1 November 2019 is not relevant. Should the Appeal Panel give Ms Frost permission to appeal from orders 2 and 7? Relevant principles 1. The Appeal Panel set out the following principles in Collins v Urban [2014] NSWCATAP 17 at [84]: 84 The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. Order 2 – refusing request for full discovery 1. In relation to order 2, Ms Frost asks the Appeal Panel to order that the TAFE Commission provide all personal records they hold including staff emails about her from 1 March 2017 to 15 October 2019. Alternatively, Ms Frost asks that we include in any final orders, a note informing the Tribunal below that she may apply again for a summons to be issued to the TAFE Commission. Ms Frost submits that the Tribunal may be minded to re-open the evidence if the Appeal Panel notes that Ms Frost may apply again for a summons. According to Ms Frost, these documents are relevant to prove that the TAFE Commission knew that she had a disability during the period covered by the complaint. 2. We have decided not to give Ms Frost permission to appeal from order 2 for the following reasons. First, this not an issue of principle or a matter of public importance. No error is plain or readily apparent which would make it unjust to allow the order to stand. Secondly, if Ms Frost were aggrieved by a previous decision of the Tribunal not to issue of summons, or to issue a summons in narrower terms than requested, the appropriate remedy would have been to apply for permission to appeal from those decisions. Ms Frost did not do so. Thirdly, we agree with the Tribunal, that the breadth of the class of documents now sought by Ms Frost is so wide as to be oppressive. Finally, and critically, there is no utility in granting leave to appeal because the evidence has been given and it only remains for the parties to provide written submissions about the findings that the Tribunal should make. If the Tribunal's decision is not in her favour, Ms Frost may seek to appeal from that decision. Order 7 - delaying consideration of TAFE Commission's application for costs 1. In relation to order 7, Ms Frost asks that this order be revoked because the TAFE Commission did not make the application for costs in the appropriate form. She says that the lawyer representing the TAFE Commission is a barrister and can read the Tribunal Rules regarding costs applications. Special circumstances must be particularised at the time the application is made. The TAFE Commission failed to particularise the special circumstances justifying an order for costs and did not serve her with an application for costs. Ms Frost adds that by applying for a costs order against her, she is being cast as the wrong doer, when it is the TAFE Commission that has acted unlawfully. 2. We have decided not to give Ms Frost permission to appeal from order 7 because the Tribunal has not made a decision concerning the awarding of costs. The Tribunal has merely decided to delay consideration of the TAFE Commission's costs application because Ms Frost was not present at the hearing. By delaying the consideration of the costs application, the Tribunal was ensuring Ms Frost is given a reasonable opportunity to respond to that application. The TAFE Commission is entitled to have the costs application determined and we can see no reason for giving Ms Frost permission to appeal from the decision to delay consideration of that application. Orders 1. Leave to appeal from interlocutory decisions is refused. 2. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 04 December 2019