Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frost v State of NSW, Department of Communities and Justice [2019] NSWCATAP 302 Hearing dates: 12 December 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Appeal Panel Before: K Ransome, Senior Member G Sarginson, Senior Member Decision: (1) Leave to appeal is refused. (2) Appeal dismissed. Catchwords: APPEAL – whether leave should be given to appeal two interlocutory decisions – no issue of principle Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 2005 CLR 507 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 9 Texts Cited: None cited Category: Principal judgment Parties: Julie Frost (Appellant) State of NSW, Department of Communities and Justice (Respondent) Representation: Solicitors: Minter Ellison (Respondent) Appellant (Self Represented) File Number(s): AP 19/42121 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2019] NSWCATAD 165 Date of Decision: 19 August 2019 Before: J Lucy, Senior Member File Number(s): 2019/00053507 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal in which the Senior Member constituting the Tribunal refused to make an order that the name of the appellant (the applicant in the original proceedings), Ms Julie Frost, not be published and refused to recuse herself from dealing with the application by the appellant for a non-publication order. Background 1. Ms Frost had made a complaint of disability discrimination and a complaint of victimisation against the respondent, the Department of Communities and Justice, to the President of the Anti-Discrimination Board. The President declined to accept her complaint as it was lacking in substance and, at Ms Frost's request, referred the matter to the Tribunal in accordance with s 93A of the Anti-Discrimination Act 1977. 2. The matter was heard by the Tribunal on 5 March 2019 at which time no application was made for a non-publication order. On 30 April 2019 Ms Frost informed the Registrar that she sought non-publication of her name. On 1 May 2019 the Tribunal made orders refusing Ms Frost leave to proceed with her complaints. The orders and reasons for decision were emailed to the parties the next day but not otherwise published at that stage. The Tribunal then invited the parties to make submissions on Ms Frost's application for non-publication orders. 3. On 14 June 2019 Ms Frost made an application that the Tribunal Senior Member recuse herself from the determination of the non-publication application. Submissions were sought from both parties on whether the applications for recusal and non-publication orders were suitable to be determined on the papers. After consideration of any submissions provided, the Tribunal decided, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act), to dispense with a hearing and the applications were therefore decided on the basis of the written submissions and other material filed by the parties. 4. In e-mails dated 14 June 2019 and 29 June 2019 Ms Frost accused the Senior Member of corruption and abuse of power. She also stated that the Senior Member had colluded with another member of the Tribunal who had made a decision in a different matter before the Tribunal in which the appellant was the applicant. She accused the Tribunal members of engaging in a vendetta against her and denying her a proper opportunity to present her case. Ms Frost alleged that the Senior Member was biased towards her and was prejudiced against people of lower socio-economic status and, by implication, people with a disability. 5. The respondent made submissions opposing the non-publication order but made no submissions concerning Ms Frost's recusal application. The Tribunal's Reasons 1. In relation to the recusal application, the Tribunal, correctly in our view, set out the relevant law in relation to allegations of actual bias and apprehended bias. The Tribunal noted that Ms Frost had provided no evidence to support any of her allegations and gave no particulars of the allegations. In relation to Ms Frost's claim that she had been denied an opportunity to present her case, the Senior Member set out her recollection of the conduct of the hearing in the substantive matter which included that the hearing had been allocated an hour and that Ms Frost had been allowed a period of time to make her submissions and was given an opportunity to provide further written submissions and evidence after the hearing. 2. The Tribunal found that the allegations of actual bias were not established. The Tribunal also found that Ms Frost had not established that there was anything in the Senior Member's conduct of the hearing or conduct outside the hearing which would give rise to a reasonable apprehension that she might not bring an impartial and unprejudiced mind to the determination of the Ms Frost's leave application. 3. In relation to the application for a non-publication order, Ms Frost made submissions that she suffers from PTSD, anxiety, depression and somatic symptoms and that, by publishing her name, others would be given an invitation to treat her as a second-class citizen. She claimed to have experienced abuse on account of her disability in the past. In an email dated 11 May 2019, Ms Frost made various comments about bullying, workplace mobbing, natural justice and violence at work. In its submissions, the respondent characterised the appellant's concerns to be about the stigma attached to being known as having a disability. It was submitted that there was no evidence as to Ms Frost's disability and that an order prohibiting the publication or broadcast of her name would only serve to concrete any stigma rather than normalising mental health issues. 4. Referring to relevant case law, the Tribunal noted that the prospect of embarrassment and stress affecting a complainant is generally an insufficient basis for departing from the general rule that the Tribunal's proceedings should be conducted openly. Further the Tribunal noted that Ms Frost had not previously sought any orders in relation to confidentiality of the proceedings and had emailed third parties about the proceedings. 5. The Tribunal stated that there were concerns that Ms Frost suffers from a mental illness which might be exacerbated if the non-disclosure order was not made, but in the absence of medical evidence to that effect, the Tribunal concluded that it would be speculative to arrive at a conclusion that any mental illness suffered by Ms Frost would be exacerbated by publication of the Tribunal's reasons. Further, the fact that Ms Frost suffers from a disability has already been made public through the publication of another Tribunal decision and there would therefore be little utility in making the order she sought. In addition, there was no evidence to support her claim that she would be treated as a "second-class citizen" if her disability was known to others or that disclosure of her name would adversely affect her. 6. The Tribunal held that, in the circumstances, Ms Frost's personal circumstances were not such that they outweighed the importance of the basic principle of open justice. The Appeal 1. There appears to be no dispute that Ms Frost must obtain the Appeal Panel's leave (permission) to appeal from an interlocutory decision: s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The Appeal Panel set out the following principles relevant to the granting of leave to appeal 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. 1. The grounds of appeal state that the Tribunal made errors of fact and law. The essence of Ms Frost's appeal is that in refusing her recusal and non-publication applications, the Tribunal perpetuated the corrupt, unreasonable, incompetent and unprofessional conduct which led to the making of the applications to the Senior Member. 2. Before dealing with the question of whether Ms Frost should be given leave to appeal from the decision of the Tribunal, we should refer to procedural matters that arose during the course of the hearing of the appeal. We made decisions on those matters at the hearing, but we note that Ms Frost has now requested we provide written reasons for those decisions. Adjournment application and extension of time to submit evidence 1. This appeal was received by the Tribunal on 16 September 2019. On 3 October 2019 the Appeal Panel made directions for the exchange of evidence and submissions. Ms Frost was required to submit her evidence and submissions by 14 November 2019 and the respondent was to provide its material by 28 November 2019. Ms Frost was then to provide any written submissions in reply by 11 December 2019 prior to the hearing of the matter the next day. Ms Frost did not file any material in accordance with the timetable set by the Appeal Panel. 2. Between 11 November 2019 and 10 December 2019 Ms Frost made several applications to adjourn the hearing. She also sought an extension of time to file evidence and submissions. She was not granted an adjournment or an extension of time and her last request for such orders was directed to be dealt with at the hearing before us on 12 December 2019. Ms Frost was, however, granted leave to appear at the hearing by telephone. 3. At the hearing Ms Frost pressed her application for adjournment to allow her further time to file evidence. Ms Frost told us that she required further time to submit evidence as her disability had impeded her ability to do so. She also stated that she required recordings of hearings and other material which she had sought by way of a summons to support her case. The recordings had not been received by her and her summons request had been refused. Upon questioning, it transpired that the evidence Ms Frost wish to submit in this appeal was recordings of other matters before the Tribunal which are not the subject of this appeal. 4. Ms Frost states that she has filed six or so medical certificates with the Tribunal to support her application for an adjournment. The most recent of those certificates appears to be one dated 22 November 2019 in which Dr Luke Dan states that, because of her medical condition, Ms Frost requires extra time to complete tasks and is therefore "seeking an extension of time/extended deadline when applying for legal documentation/delivery of civil law documents". 5. We refused to grant the adjournment and extension of time on the basis that Ms Frost has had over two months to provide any relevant materials which we considered to be ample time taking into consideration the comments made by Dr Dan; the decision the subject of the appeal was made on the papers and therefore there is no sound recording of any hearing the subject of this appeal; we were not satisfied that recordings of other hearings not the subject of this appeal are relevant; and the summons requested by Ms Frost has been refused and is therefore no longer of relevance to the appeal. Furthermore, the material sought to be provided by Ms Frost in the appeal was not material that was before the Senior Member at the time she made her decision. In general, the appeal is confined to a consideration of the evidence that was before the Tribunal at the time it made its decision and no orders have been made for either party to adduce new evidence. 6. Our decision to refuse the adjournment was also one made in conformity with the guiding principle of the Tribunal to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 36(1), NCAT Act). Application to recuse 1. Upon being informed of our decision to refuse her application for an adjournment, Ms Frost then made an application that we recuse ourselves from dealing with her appeal. We declined to do so. 2. Ms Frost's application appeared to stem from her belief that in refusing her application for an adjournment we had demonstrated that we are unqualified to deal with persons with a disability, condoned corrupt conduct and therefore showed bias or apprehended bias. The allegations were not supported by any fact or argument and were made through simple assertion. 3. It is a requirement of procedural fairness that proceedings be determined by an independent and impartial decision-maker. 4. So far as any claim of actual bias was concerned Ms Frost did not raise any matters which would indicate that we had a pre-existing state of mind which meant that we were unwilling or unable to undertake any proper evaluation of the issues before us (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 2005 CLR 507 at [69]; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]). We did not express any opinion on any matters relating personally to Ms Frost or on any issue arising for determination in the appeal. Ms Frost was on notice that her application for adjournment would be dealt with at the hearing and was well aware that previous such applications had been refused. We considered her reasons for requesting the adjournment but, on balance, decided the appeal should proceed on the listed day. The allegation of actual bias was not made out. 5. As to apprehended bias, the test is an objective one and is whether a fare-minded layperson, with knowledge of the relevant conduct might reasonably consider that we might not carry out our functions with an impartial and unprejudiced mind (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]). The conduct in question appears to be our refusal to grant the adjournment requested by Ms Frost. Our reasons for refusing the adjournment are set out above. We did not consider that there was anything in our conduct which would give rise to a reasonable apprehension that we would not bring an impartial and unprejudiced mind to the determination of her application. Consideration of the appeal 1. Ms Frost made oral submissions on the nature of the errors that had been made by the Tribunal in determining her recusal and non-publication requests. She also, as she acknowledged, read from a pre-prepared statement setting out why she believed her appeal should succeed. The submissions made by Ms Frost, however, did not identify with any clarity the grounds upon which she seeks leave to appeal. Her submissions consisted primarily of allegations of a personal nature made against the Senior Member who decided the matter under appeal as well as allegations against other Tribunal members who have dealt with this and other applications before the Tribunal and the Appeal Panel. She repeated the allegations of corruption, discrimination and oppression which she had made in the proceedings before the Senior Member. 2. There is no doubt that Ms Frost holds deep and genuinely held views about the Tribunal and the decisions which she believes should have been made in applications she has made to the Tribunal. The only issue in this appeal is whether she should be granted leave to appeal from the decisions that were made by the Tribunal on 19 August 2019. As set out in the extract above from Collins v Urban applications for leave to appeal from matters relating to practice and procedure are to be approached with restraint. 3. In relation to the Tribunal's decision refusing Ms Frost's recusal application, we do not consider that any issue of principle or matter of public importance arises in this case. We can discern no error in the decision which would make it unjust to allow the order to stand. While we understand that Ms Frost vehemently disagrees with the order, the Tribunal's decision was well-reasoned and contains no factual error that was unreasonably arrived at and clearly mistaken. The matter was dealt with on the papers, but Ms Frost has not raised, let alone established, that that process was unorthodox or produced an unfair result. 4. Similarly, the Tribunal's decision to refuse to make a non-publication order to suppress Ms Frost's identity was made after carefully considering each party's submissions and the particular factual circumstances of the case. It is apparent that the Tribunal had due regard to the matters raised by Ms Frost but was not persuaded that a non-publication order should be made. Again, we do not consider that any issue of principle or public importance arises and we can discern no factual or legal error in the Tribunal's well-reasoned decision. 5. We have therefore concluded that leave to appeal against two interlocutory decisions of the Tribunal should be refused. Orders 1. We make the following orders: 1. Leave to appeal is refused. 2. Appeal 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: 20 December 2019