Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Chand v RailCorp [2011] NSWCA 79
• Hearing dates: 22 February 2011
• Decision date: 08 April 2011
• Before: Hodgson JA at 1; Campbell JA at 90; Sackville AJA at 91

Decision

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ADMINISTRATIVE LAW - Complaints of sexual harassment and victimisation - Complaints dismissed by Administrative Decisions Tribunal - Appeal to appeal panel - Appeal extended to merits - Respondent permitted to file notice of contention out of time - Appeal dismissed - Whether Appeal Panel erred by reconsidering a decision - Res judicata and issue estoppel - Whether Appeal Panel otherwise erred or denied procedural fairness.
• Legislation Cited: Administrative Decisions Tribunal Act 1997 ss.73, 81, 83, 113 - 115, 119, 120; Anti-Discrimination Act 1977 ss.22, 50, 103
• Cases Cited: Ainslie v Ainslie (1927) 39 CLR 381; Blair v Curran (1939) 62 CLR 464; Chand v Rail Corporation of NSW (No 3) [2010] NSWADTAP 11; Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27; Chand v Rail Corporation of NSW (EOD) [2007] NSWADTAP 54; Chand v State Rail Authority [2007] NSWADTAP 90; Commonwealth v Sciacca (1988) 17 FCR 476; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; Wiest v DPP (1988) 23 FCR 472; Zhang v Blinds Pty Ltd [2008] NSWADTAP 24
• Category: Principal judgment
• Parties: Bimla CHAND (appellant); RAILCORP OF NEW SOUTH WALES (first respondent); Jan PLICHTA (second respondent); John HINIEN (third respondent); Peter DEMPSEY (fourth respondent)
• Representation: Counsel: In Person (appellant); K NOMCHONG (first respondent); Solicitors: In Person (appellant); Clayton Utz (first respondent)
• File Number(s): CA 2009/298394

Decision under appeal

• Citation: Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Chand v Rail Corporation of New South Wales (No 2) [2009] NSWADTAP 27
• Before: Magistrate N Hennessy Deputy President, M Smyth Judicial Member and L Mooney Non-judicial Member
• File Number(s): 079026

Judgment

1 HODGSON JA: In 2005, complaints of sexual harassment and discrimination brought by the appellant against the first respondent (RailCorp, then called State Rail Authority) were referred to the Administrative Decisions Tribunal (the Tribunal). The appellant's claims in the Tribunal were formalised in Points of Claim dated 13 January 2006, which alleged sexual harassment and victimisation.

2 On 17 April 2007, the Tribunal (constituted by G R Ireland, Judicial Member, and L Nemeth De Bikal and N Hiffernan, Non-judicial Members) made the following orders:

1. The complaints of sexual harassment against three employees of the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

2. That four of the complaints of victimisation against the respondent are not within the jurisdiction of the Tribunal. Each complaint is dismissed.

3. That the remaining complaints of victimisation against the respondent are not substantiated. Each complaint is dismissed.

3 On 17 May 2007, the appellant filed a Notice of Appeal from that decision, purporting to be both on a question of law and also seeking leave to extend the appeal to the merits. However, in relation to the latter, the reasons stated were merely "the applicant reserves the right to amend the application at a later stage to extend the appeal to the merits after I have consulted a legal team." (Red 53).

4 On 2 October 2007, the Appeal Panel of the Tribunal (constituted by Magistrate N Hennessy Deputy President, M Smyth Judicial Member and L Mooney Non-judicial Member) made the following orders:

1. Order 1 of the Tribunal is set aside and the following order is made:

a. The complaint of sexual harassment involving Mr Dempsey is dismissed for want of jurisdiction.

b. The complaint of sexual harassment involving Mr Plichta is dismissed under s 108 of the Anti-Discrimination Act 1977.

c. Leave is given for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of sexual harassment involving Mr Hinien.

2. Order 2 of the Tribunal is set aside and the following order is made:

Leave is given for the appeal to be extended to the merits of the Tribunal's decision in relation to complaints of victimisation against the respondent where the allegation under s 50(1)(c) of the Anti-Discrimination Act 1977 occurred before 18 June 2002.

3. Order 3 of the Tribunal is affirmed.

4. Leave is refused for the appeal to be extended to the merits of the Tribunal's decision in relation to any other complaint.

5. The complaint of race discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977.

6. The complaint of disability discrimination is dismissed under s 107 of the Anti-Discrimination Act 1977.

5 On 12 November 2008, RailCorp filed a document entitled Notice of Appeal / Notice of Contention giving notice of its contention that the decision of the Tribunal should be affirmed on grounds other than those relied on by the Tribunal.

6 On 30 April 2009, the Appeal Panel (constituted as before) made the following orders:

1. The complaint of sexual harassment against Mr Hinien is dismissed

2. The complaint of victimisation is dismissed.

7 The appellant has appealed to this Court from the orders made by the Appeal Panel on 2 October 2007 and 30 April 2009, joining as respondents the second, third and fourth respondents, who were not parties to the proceedings before the Tribunal. Such an appeal lies only "on a question of law": see below.

8 On 2 March 2010, the Appeal Panel (constituted by Magistrate N Hennessy Deputy President, M Smyth Judicial Member and L Nagle Non-Judicial Member) made the following orders:

1. Leave is granted for RailCorp to appeal out of time against the Tribunal's failure to determine its costs application in relation to two adjournments at first instance.

2. Leave is granted for the appeal to extend to the merits of the Tribunal's failure to determine RailCorp's costs applications in relation to two adjournments at first instance.

3. Ms Chand is to pay RailCorp's costs of the two adjournment applications as agreed or, as assessed under the Legal Profession Act 2004.

4. The remaining applications for costs are refused.

5. RailCorp's application for suppression and related orders is refused.

9 The appellant has applied for leave to appeal against these orders. That application for leave will be dealt with in a separate judgment.

Statutory provisions

10 This appeal requires consideration of provisions of the Anti-Discrimination Act 1977 ( AD Act) and the Administrative Decisions Tribunal Act 1997 ( ADT Act) (as in force between 1 January 2009 and 18 June 2009.)

11 Relevant provisions of the AD Act concerning sexual harassment are s 22A and s 22B subs (2), (6) and (9):

22A Meaning of "sexual harassment"

For the purposes of this Part, a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

22B Harassment of employees, commission agents, contract workers, partners etc

...

(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

...

(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both those persons.

...

(9) In this section:

place includes a ship, aircraft or vehicle.

workplace means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.

workplace participant means any of the following:

(a) an employer or employee,

(b) a commission agent or contract worker,

(c) a partner in a partnership,

(d) a person who is self-employed,

(e) a volunteer or unpaid trainee.

12 A relevant provision of the AD Act concerning victimisation is s 50:

50 Victimisation

(1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

13 Part 9 of the AD Act concerns complaints and how they are to be dealt with. Subdivision 6 of Division 2 provides for the referral of complaints to the Tribunal, as occurred in this case. Division 3 sets out the functions of the Tribunal in relation to complaints referred to it. Relevantly to this appeal, Division 3 includes s 103:

103 Tribunal may amend complaint

(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.

(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.

(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.

14 Turning to the ADT Act, Chapter 6 of that Act deals with procedure of the Tribunal. Relevant to this appeal are ss 73, 81 and 83:

73 Procedure of the Tribunal generally

(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and

(h) may reinstate proceedings that have been dismissed because of an applicant's failure to appear if the Tribunal considers that there is a reasonable explanation for that failure.

(6) A judicial member may:

(a) hold a directions hearing in relation to any proceedings before the Tribunal, or

(b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.

81 Amendments and irregularities

(1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2) Any such amendment may be made:

(a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and

(b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs).

(3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings.

(4) For the purposes of subsection (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.

83 Powers in relation to witnesses

(1) The Tribunal may:

(a) call any witness of its own motion in any proceedings, and

(b) examine any witness on oath or affirmation, or by use of a statutory declaration, in any proceedings, and

(c) examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and

(d) compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings before it.

(2) If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may:

(a) seek to procure the voluntary attendance of the person before it by notifying the person in such manner as it thinks appropriate in the circumstances, or

(b) direct the Registrar to issue a summons to compel the attendance of the person before it.

(3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.

15 Chapter 7 of the ADT Act deals with appeals. Relevant provisions concerning internal appeals are ss 113 to 115:

113 Right to appeal against appealable decisions of the Tribunal

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal under this Part:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of section 24A) by of the Tribunal [sic] except by leave of the Appeal Panel.

(2B) For the purposes of determining whether to grant leave under subsection (2A), and for determining the appeal if leave is granted, the Appeal Panel may be constituted by:

(a) one presidential judicial member-if the interlocutory function was exercised by the Tribunal constituted by a Deputy President or by one or more members other than the President, or

(b) in accordance with section 24-if the interlocutory function was exercised by the President.

(2C) The provisions of subsection (2B):

(a) have effect despite any other requirement of this Act or any other enactment relating to the constitution of an Appeal Panel for the exercise of its functions, and

(b) do not prevent a differently constituted Appeal Panel from determining whether to grant leave to appeal under subsection (2A) or determining the appeal if the Panel is duly constituted to exercise that function apart from subsection (2B).

(2D) Subsection (2B) has effect despite section 24A.

(2E) If an appeal is made under subsections (1) and (2) against the exercise of an ancillary function (within the meaning of section 24A) by the Tribunal, the Appeal Panel may be constituted in the same way as an Appeal Panel may be constituted under subsection (2B) in relation to appeals against the exercise of an interlocutory function by the Tribunal.

(2F) The provisions of subsection (2E):

(a) have effect despite any other requirement of this Act or any other enactment relating to the constitution of an Appeal Panel for the exercise of its functions (including section 24A), and

(b) do not prevent a differently constituted Appeal Panel from determining an appeal under subsections (1) and (2) if the Panel is duly constituted to exercise that function apart from subsection (2E).

(3) An appeal under this Part must be made:

(a) within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later), or

(b) within such further time as the Appeal Panel may allow.

(4) An appeal under this Part is to be made in the manner prescribed by the rules of the Tribunal.

114 Appeals on questions of law

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:

(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),

(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,

(c) an order made in substitution for an order made by the Tribunal.

115 Appeals on the merits

(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.

(3) In determining any such appeal, the Appeal Panel may decide:

(a) to affirm the decision, or

(b) to vary the decision, or

(c) to set aside the decision and make a decision in substitution for the decision it set aside.

16 Relevant provisions concerning appeals to the Supreme Court are ss 119 and 120:

119 Right of appeal to Supreme Court

(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.

(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:

(a) an interlocutory decision,

(b) a decision made with the consent of the parties,

(c) a decision as to costs.

(2) The Appeal Panel (or any of the members constituting the Appeal Panel) cannot be made a party to an appeal under this section. Rules of court made under the Supreme Court Act 1970 may make provision for the parties to any such appeal (including the designation of a respondent where the only party in the proceedings from which the appeal is brought was the appellant).

(3) An appeal by a person under this section must be made:

(a) within such time and in such manner as is prescribed by rules of court made under the Supreme Court Act 1970 , or

(b) within such further time as the Supreme Court may allow.

120 Orders on appeal to the Supreme Court

(1) The Supreme Court is to hear and determine the appeal and may make such orders as it thinks appropriate in light of its decision.

(2) The orders that may be made by the Supreme Court on appeal include (but are not limited to):

(a) an order affirming or setting aside the decision of the Appeal Panel, and

(b) an order remitting the case to be heard and decided again by the Appeal Panel (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.

Circumstances

17 The factual background to the proceedings before the Tribunal was set out as follows in the first instance Tribunal decision (omitting entries objected to by the appellant):

17 The applicant is a person of Indian nationality who migrated to Australia on 15 September 1991. She commenced employment with the respondent on 17 April 2000 as a permanent part-time Customer Services Attendant. The basic details of the history of her employment with the respondent [are] as follows:

October 2000 - December 2000: The applicant worked at the Marrickville Station reporting to Mr Joe Kadry and Mr John Pais.

22 January 2001 - 18 December 2002: The applicant was promoted to a Revenue Protection Officer (RPO) based at Sydney Central Business District. The appointment was preceded by a period of training for the new position.

Early August 2002: Applicant applied for retraining for the position of Trainee Manager.

26 August 2002: Applicant interviewed for position of Trainee Manager;

September 2002: The respondent announces that the Revenue Protection Unit (RPU) is to be dissolved. The RPU was finally disbanded in September 2004.

1 October 2002: Applicant meets with Mrs Pickburn for feedback re unsuccessful application as Trainee Manager.

9 October 2002: Applicant goes on stress leave.

15 October 2002: Applicant alleges she sent fax to Mr Platt (Director and General Manager for Security of the respondent). The fax states a long history of applicant's dissatisfaction with her experiences at the workplace.

22 October 2002: Applicant sends fax advising stress leave extended following certificate from Dr Dong Tran.

29 October 2002: Dr Tran issues medical certificate to applicant certifying that she is unfit for work and diagnosing that she suffers from adjustment disorder with mixed anxiety and depression.

30 October 2002: Applicant submits worker's compensation claim for stress leave. The application was rejected and applicant did not pursue the claim.

18 November 2002: Applicant meets with Mr Platt and others to resolve the applicant's issues.

18 November 2002: Applicant returns to work from stress leave with restricted duties i.e. no direct contact with Mr Plichta or Mrs Narayan.

27 November 2002: Applicant makes application to Industrial Relations Commission concerning her alleged ongoing threatened dismissal. This application was dismissed on 19 December 2002.

3 December 2002: Applicant applies to the respondent, for redeployment.

18 December 2002: Applicant provides medical certificate from Dr Tran certifying the applicant fit for work with restriction that no contact with Mr Plichta or Mrs Narayan.

18 December 2002: The applicant stood down from her position pending location of suitable job to meet restrictions in Dr Tran's certificate.

18 December 2002: Applicant lodges first complaint with the ADB. The complaint consists of a copy of the fax allegedly sent to Mr Platt on 15 October 2002.

24 December 2002: Applicant complains of treatment by Mr Metcalfe when reporting for work.

18 December 2002 - 30 May 2003: Applicant on light duties at various locations.

...

January 2005: The applicant's employment with the respondent was terminated. ...

18 On 17 January 2006, solicitors acting for the appellant filed the Points of Claim dated 13 January 2006 in the Tribunal.

19 In relation to her claim of sexual harassment, the allegations in the Points of Claim were as follows:

The applicant alleges breach of s.22B of the Anti-Discrimination Act in that she was sexually harassed by employees of the respondent.

Particulars of harassment

(a) The applicant alleges that she was sexually harassed by Mr Peter Dempsey in that he asked her, including after she had specifically requested that he desist, about her having sex, her virginity and whether she had reached menopause. In addition the applicant alleges that Mr Dempsey hit her in the genitals with an infringement book;

(b) The applicant alleges that she was sexually harassed by Mr John Hinian [sic] in that he continued to read pornographic magazines in her presence, despite her request that he stop.

(c) The applicant alleges that she was sexually harassed by Mr Jan Plicta [sic] in that he brushed her buttocks with his hand.

20 In relation to the claim of sexual harassment by John Hinien, the solicitor acting for the appellant, on 16 March 2006, gave the following particulars, said to relate to the period between about March 2001 and October 2002:

(i) Mr John Hinien continued to read pornographic magazines in the direct vicinity of the applicant, notwithstanding the applicant's direct request to him and others that he and others desist from reading such material in her presence;

(ii) Notwithstanding that he knew that the applicant objected to and was offended by his continued reading of pornographic magazines in his presence, John Hinien read such magazines while seated next to her. Such magazines included pictures of women naked and in sexual poses. When the applicant objected, John Hinien said to her words to the effect of:

"You are just a frustrated spinster"; and, on another day

"If someone were to marry Bimla he would seek a divorce in less than 5 minutes".

21 In relation to the claim of victimisation, the Points of Claim made the following allegations:

Particulars of previous complaints

The applicant made a number of complaints to her supervisor, senior managers and Human Resources personnel. These included:

(a) complaints to the Human Resource Officer (South East Sector office) alleging that she had been sexually and racially discriminated against by Dr Walsh, a State Rail panel doctor;

(b) complaints to Jan Pilchta, Mark Abel, Mark Karouche and to Kevin Platt alleging that she had been sexually and racially discriminated against and sexually harrassed by Mr Peter Dempsy;

(c) complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr Joe Cadry;

(d) complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr John Pias;

(e) complaints to Jan Pilchta, Mark Abel and Mark Karouche alleging that she had been discriminated against on the basis of her disability and marital status by Ms Nirmala Joshi;

(f) complaints to Kevin Platt alleging that alleging that [sic] she had been discriminated against on the basis of her sex by Jan Pilchta;

(g) complaints to Jan Pilchta, Barbara Phillips and Kevin Platt alleging that her complaints as to sex, race and disability discrimination were handled differently to complaints made by other workers;

Particulars of Victimisation

As a result of her having made previous complaints the applicant was subjected to detriment in that:

(a) The applicant was denied redeployment in circumstances where all other comparable employees were redeployed to a permanent position;

(b) The applicant was denied constructive feedback by Ms Jacqui Pickburn following an unsuccessful application to the position of trainee manager;

(c) The applicant's attempts to be redeployed were frustrated;

(d) The applicant was denied an opportunity to return to pre-injury duties notwithstanding medical opinion;

(e) The applicant was denied procedural fairness in relation to complaints made against her;

(f) The applicant was referred to by her supervisors as a dobber and troublemaker;

(g) The applicant's complaints were treated differently to those of other employees;

(h) Despite requests, no steps were taken to prevent or reduce harassing and belittling comments made by colleagues;

(i) The applicant's allegations of corruption and misfeasance were treated without the requested levels of confidentiality and were dismissed summarily;

(j) The applicant's complaints were treated with a presumption that they dealt with insignificant events;

(k) The applicant's [sic] was required to attend multiple medical examinations as to her mental health;

22 On 10 May 2006, the matter was set down for hearing before the Tribunal on 1 November 2006 for 11 days. A timetable for witness statements was set, and (according to the decision in the costs matter at [2010] NSWADTAP 11), the following events occurred:

29 ... On 9 October 2006, RailCorp applied to the Tribunal for an extension of the timetable because Ms Chand had filed her material out of time. On 12 October 2008, RailCorp was given until 18 October to file the remainder of its material and Ms Chand was given until 25 October to reply. The hearing dates remained unchanged. RailCorp filed Ms Messenger's affidavit (annexing 4 volumes of material) on 18 October 2006 in accordance with the timetable.

30 On 23 October Ms Chand wrote to the Tribunal requesting that the hearing dates be vacated. That application was heard on 26 October 2006. The Tribunal granted the application in part by vacating the first three days of hearing, 1, 2 and 3 November. The hearing was then re-scheduled to take place for 8 days from 6 - 15 November. On 6 November, Ms Chand again applied for an adjournment which was initially refused but granted after lunch when new counsel appeared. The matter was listed to resume on 9 November. The matter was ultimately heard over 6 days: 6, 9, 10, 13, 15 and 24 November. Five days were vacated, 1, 2, 3, 7 and 8 November.

23 In its reasons for its decision on 17 April 2007 ([2007] NSWADT 90), the Tribunal noted that a decision of the President of the Anti-Discrimination Board (made pursuant to ss 88(3) and (4) of the AD Act, as it was prior to 1 May 2005) had confined the complaints to be considered to complaints made on and after 18 June 2002; and the Tribunal noted that the parties and the Tribunal had confined their consideration of complaints to the period 18 June 2002 to 30 January 2003, this period being called "the complaint period".

24 In its reasons, the Tribunal said this concerning the evidence of Mr Hinien:

42 In his response to the Tribunal, Mr Hinien denied having read pornographic magazines at any time whilst at work. His affidavit is emphatic in his denial. There is a conflict in the evidence between the applicant and Mr Hinien. The nature of the presentation of Mr Hinien's evidence before the Tribunal places the Tribunal in a difficulty in accepting the veracity of Mr Hinien's denial. Mr Hinien lodged with the Tribunal an affidavit which he swore on 17 October 2006. Mr Hinien was not available during the days of the hearing to be present to give evidence and to be cross-examined. It was explained to the Tribunal that Mr Hinien was on a holiday which he had pre-planned and that he was not able without considerable inconvenience either to postpone that holiday or to interrupt it to return to Sydney to give evidence. Subsequently it transpired that Mr Hinien was on a touring holiday in Victoria. In the face of objections from counsel for the applicant, the Tribunal acceded to the request from counsel for the respondent for Mr Hinien to give his evidence before the Tribunal by way of telephone which was amplified in the hearing room. Where there is a distinct conflict in material evidence, that manner of giving evidence deprives the Tribunal of the opportunity of observing the witness during his examination and cross-examination and prevents the Tribunal from forming any judgment as to the demeanour of the witness during this process. As a result, the Tribunal, where there is a conflict in the evidence between Ms Chand and Mr Hinien, would give preference to the evidence of the applicant. (Emphasis added.)

43 Accepting the evidence of the applicant where it conflicts with the evidence of Mr Hinien, the Tribunal has evidence, uncorroborated, that there were three occasions on which Mr Hinien read pornographic magazines in the presence of the applicant. On one of those occasions the applicant requested Mr Hinien to desist from reading such material.

It will be seen that the sole basis for rejecting Mr Hinien's denial that he had read pornographic magazines at work was his unavailability to be cross-examined in the presence of the Tribunal. Mr Hinien was never given the opportunity to respond in the presence of the Tribunal to the appellant's claim that his account should not be accepted.

25 Despite these findings, the Tribunal rejected the appellant's claim for sexual harassment against Mr Hinien giving the following reasons:

45 The section requires an objective assessment based on the reasonable person test as to whether in all the circumstances a reasonable person would anticipate that the other person would be offended, humiliated or intimidated by the unwelcome conduct of a sexual nature. When regard is had to all the circumstances relating to the incidents described by the applicant concerning Mr Hinien's conduct in reading magazines depicting naked women while sitting at the same table as the applicant, consideration must be given to the circumstance that the applicant did not react in relation to this conduct in a manner that would be expected of a person who was offended, humiliated or intimidated by the conduct. The applicant only complained in specific terms about the incident on 23 August. She left it until 25 September 2002 to mention it in a memo in which she referred in much more detail to other incidents concerning Mr Hinien about which she complained in that memo. The applicant only referred to the incidents in early June 2002 and in the week of 26 August 2002 and in October 2002 in an examination during her evidence before the Tribunal.

46 Applying the objective test as to whether a reasonable person in the position of Mr Hinien would have anticipated that the applicant would be offended, humiliated or intimidated by his actions in reading a pornographic magazine in the circumstances described by the applicant, the Tribunal has had regard to the first instance in which the applicant alleges Mr Hinien read a pornographic magazine while sitting at a large table at which the applicant was also sitting, in June 2002. The applicant did not state that on this occasion she spoke to the applicant. The Tribunal is not satisfied that those circumstances would lead a reasonable person in Mr Hinien's position to anticipate that the applicant would be offended, humiliated or intimidated.

47 The incident on 23 August 2002 is different to the occasion early in June 2002 in that on this occasion the applicant did express her objection to Mr Hinien's conduct in reading the magazine. However, the applicant did not express to Mr Hinien that she was objecting on a personal basis but rather that she was objecting to him reading the magazine 'in the office.' In view of the antagonistic history between the applicant and Mr Hinien, a reasonable person in the circumstances would not have interpreted the applicant's objections as indicating that she was offended, humiliated or intimidated. In the view of the Tribunal, Mr Hinien's interpretation of Ms Chand's objection was confirmed by him applying on the following day for a transfer to an alternative group as he was 'having great difficulty in dealing with and working with a fellow RPO Bimla Chand.' The fact that the applicant only complained about Mr Hinien's conduct on 23 August in her memo to her supervisor on 25 September 2002, and then only in the most general terms, indicates that the applicant did not regard the incident on 23 August 2002 as a serious offence. The occasion that she describes that occurred on the week of 26 August 2002 is in a similar category to the first occasion although this followed the occasion on 23 August 2002 in which Ms Chand had raised a specific objection to Mr Hinien reading an offending magazine. The Tribunal however is not able to make a finding that substantiates a claim of sexual harassment based on the applicant's evidence of this occasion, especially as the applicant had not raised a complaint concerning the incident until examined by the Judicial Member during her evidence before the Tribunal.

26 The Tribunal also rejected the appellant's claim of sexual harassment against Mr Dempsey and Mr Plichta. In relation to Mr Dempsey, it held that the incidents alleged occurred before 18 June 2002. In relation to Mr Plichta, it held that the incident complained of could not be classified as conduct of a sexual nature, nor did it occur in circumstances in which a reasonable person would have anticipated that the appellant would be offended, humiliated or intimidated.

27 In relation to the allegations of victimisation, the Tribunal excluded from its consideration of the complaints referred to in paragraph 4 of the Point of Claim (the alleged "triggers" for the alleged acts of victimisation) those that occurred prior to 18 June 2002; and it found that in relation to the remainder, the claims of victimisation were not satisfied.

28 In her notice of appeal from that decision filed on 17 May 2007, the appellant stated the following as the question of law she was appealing on:

1. NOT GIVING ADEQUATE OPPORTUNITY TO RESPOND TO ANY RELEVANT INFORMATION WHICH IS AGAINST THEM.

My legal representative, Emanueli Oliveri, was served with 2000 pages of material. Mr Oliveri was not allowed Procedural Fairness, in that he was denied an adjournment and hence he was forced to abandon me at the last moment. The Tribunal/Judicial Member allowed me a few days of adjournment but it was enough to prepare and submit a response to the huge volume of material.

2. The facts stated in the decision did not apply the appropriate standards of proof. It does not substantiate standards of proof applied to the allegations concerning the complaints of victimisation and harassment. Hence the Tribunal made findings of fact where there is no evidence to support that finding.

The applicant reserves her right to amend the application at a later stage.

29 The appellant stated her reasons for asking the Tribunal to extend the appeal to the merits as follows:

The applicant reserves her right to amend the application at a later stage to extend the appeal to the merits after I have consulted a legal team.

30 No document purporting to amend the appellant's Notice of Appeal or specifying grounds for extension of the appeal to a hearing on the merits was filed subsequently. The appellant's submissions to the Appeal Panel filed on 20 July 2007 did not specify grounds for an extension of the appeal to a hearing on the merits, or advance arguments seeking findings of fact in her favour: these submissions were directed only to establishing errors of law by the Tribunal.

31 In its decision given on 2 October 2007 ([2007] NSWADTAP 54), the Appeal Panel found that the Tribunal had erred in its decision concerning Mr Hinien:

24 Reasoning and conclusion . In circumstances where sexual harassment is alleged between fellow employees, in breach of s 22B(2), there are four elements which must be satisfied under s 22A before a complaint can be substantiated. Those elements are:

a) one person has engaged in unwelcome conduct;

b) that conduct is a sexual advance, a request for sexual favours or other conduct of a sexual nature;

c) the conduct is "in relation to" another person; and

d) a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by that conduct.

25 The Tribunal found, at [43] that there were three occasions on which Mr Hinien read pornographic magazines in the presence of the applicant and that on one of those occasions the applicant requested Mr Hinien to desist from reading such material. The Tribunal made no findings in relation to the first three elements of s 22A as to whether the conduct was unwelcome, whether it was of a sexual nature or whether it was "in relation to" Ms Chand. Those were matters which the Tribunal should have addressed.

26 The Tribunal correctly identified the fourth element, that is whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended humiliated or intimidated by the conduct. However the Tribunal erred when it applied that test to the facts of the case. Instead of making an objective assessment, the Tribunal based its conclusion largely on Ms Chand's subjective reaction to the conduct. Her failure to say anything to Mr Hinien except on one occasion, the delay in reporting one of the incidents and the fact that two of the incidents were raised for the first time at the hearing, were the main matters on which the Tribunal relied in reaching its conclusion. While those matters are relevant to the question of whether the conduct was 'unwelcome' they are not the matters that are relevant to an objective assessment of how a person would react in the circumstances. The question is not whether the person was offended, humiliated or intimidated by the conduct. Rather, the question is whether a reasonable third party would have anticipated, in all the circumstances, that the person would have had that reaction.

27 In addition, despite finding that Mr Hinien had read pornographic magazines in Ms Chand's presence, the Tribunal noted that Ms Chand's evidence was "uncorroborated" and that she did not raise two of the incidents until she was giving evidence to the Tribunal. Those comments suggest that one of the Tribunal's reasons for finding that the complaints of sexual harassment were not substantiated was its doubt that the incidents had occurred. Once the Tribunal had decided that it would prefer Ms Chand's evidence when it was in conflict with Mr Hinien's, and had impliedly found that the incidents occurred, it was an error to refer to doubts about the veracity of her evidence when applying the objective test in s 22A. Having found these errors, we consider below at [45] whether to extend the appeal to the merits of the Tribunal's findings in relation to the incidents involving Mr Hinien.

32 The Appeal Panel found no error of law in relation to the Tribunal's finding that the conduct of Mr Plichta was not conduct of a sexual nature.

33 In relation to the victimisation complaints, the Appeal Panel found an error of law in not considering complaints by the appellant occurring before the complaint period, giving these reason:

36 Tribunal's reasoning . The Tribunal decided that it was bound by s 103(2) of the AD Act (the amendment provision) to restrict the claims of victimisation to claims where both the trigger in s 50(1)(c) and the detriment had occurred during the complaint period. The Tribunal relied on an unreported decision in Zhang v Blinds Pty Ltd (17 November 2006) where the Tribunal held that s 103 only authorises the Tribunal to add complaints where those complaints arise out of the complaints which have been investigated by the President. The rationale for that view was that otherwise a complainant would have an unlimited capacity to seek to have complaints added even though those complaints had not been investigated by the President.

37 Reasoning and conclusion . The ordinary grammatical meaning of s 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." Contrary to the Tribunal's decision, there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President.

38 There is no extrinsic material which sheds light on the rationale for s 103, but the intention of the legislature was to avoid the delay and potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances, is already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but s 103 does not confine amendments to complaints of that kind. Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added. Having found an error of law, we consider below at [47] whether or not to extend the appeal to the merits of the Tribunal's decision on this point.

34 The Appeal Panel dismissed other points raised by the appellant, including a contention that the appellant was denied procedural fairness having regard to the large quantity of material served on her, the failure of the Tribunal to deal with complaints about race and disability discrimination, and various alleged errors of fact.

35 As regards the extension of the appeal to a hearing on the merits, the Appeal Panel relevantly said this:

45 Sexual harassment complaints . Ms Chand submitted that the Appeal Panel should now join Mr Hinien and Mr Plichta, the employees who allegedly sexually harassed her, as parties. We do not intend to do so. Ms Chand's representative had every opportunity to join them as parties before the Tribunal. In relation to the complaint against Mr Hinien, we have found that the Tribunal erred when it applied s 22A. That error warrants leave being given for the appeal to be extended to the merits of the Tribunal's decision in relation to this complaint. We can either remit the complaint to the Tribunal to be heard and decided again, in accordance with this decision, or we can determine the merits of that complaint ourselves: Tribunal Act , s 114. As the Tribunal found that the incidents had occurred and that finding involved no error, there is no issue of credit to be determined. In those circumstances we have decided to determine the merits of this complaint ourselves after inviting further submissions from the parties. The only issues that remain to be decided are:

(i) whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes "unwelcome conduct of a sexual nature" in relation to Ms Chand, as set out in s 22A of the AD Act ?

(ii) If so, would a reasonable person, having regard to all the circumstances, have anticipated that Ms Chand would be offended, humiliated or intimidated by that conduct?

(iii) If so, is Railcorp vicariously liable for the conduct of Mr Hinien pursuant to s 53 of the AD Act ?

(iv) If so, what remedy, if any, should the Appeal Panel order?

46 The Appeal Panel invites Ms Chand to file and serve any further submissions on these questions within 28 days of the date of these reasons. Those submissions should not contain any new evidence but should refer to the transcript of evidence before the Tribunal and to documents admitted in evidence. Railcorp is invited to file and serve any submissions in reply within a further 28 days. The matter will then be listed for hearing on those issues.

47 Victimisation complaints . We have found that the Tribunal erred when it concluded that s 103 did not allow it to add a complaint of victimisation where the trigger for the "detriment" had occurred prior to the beginning of the period of complaint. The triggers which the Tribunal did not consider because they occurred before 18 June 2002 were those listed in paragraphs 4(a), 4(b) (apart from the complaint to Mr Platt alleged to have been made in October 2002), 4(c), 4(d) and 4(e) (apart from the complaints referred to Mr Abel and Mr Karouche in September 2002) of the Points of Claim. (See [68] of the Tribunal's decision.) Those "triggers" were as follows:

4(a) Complaints to the Human Resource Officer (South East Sector office) alleging that she had been sexually and racially discriminated against by Dr Walsh, a State Rail panel doctor;

4(b) Complaints to Jan Plichta, Mark Abel and Mark Karouche and to Kevin Platt alleging that she had been sexually and racially discriminated against and sexually harassed by Mr Dempsey;

4(c) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr Joe Cadry;

4(d) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr John Pias;

4(e) Complaints to Jan Plichta, Mark Abel and Mark Karouche alleging that she had been discriminated against on the basis of her disability and marital status by Ms Nirmala Joshi.

48 In view of the Tribunal's error, we intend to extend the appeal to a review of the merits of the Tribunal's decision that the victimisation complaints based on these triggers be dismissed. The following directions are made in relation to that complaint:

Within 28 days of the date of these reasons Ms Chand is to file and serve submissions addressing the following issues based on the transcript of evidence and documents before the Tribunal:

(i) in relation to the "triggers" which fall within the definition in s 50(1)(c):

- what is the evidence that would lead to the conclusion that a detriment allegedly suffered by Ms Chand was 'on the ground of' those triggers;

- who subjected her to a detriment on the ground of that "trigger", and

- what was the detriment and when did it occur.

(ii) what remedy, if any, should the Appeal Panel order in relation to each alleged breach of s 50.

Within a further 28 days Railcorp is to file and serve submissions in response. The matter will then be listed for hearing on those issues.

49 When making those submissions, the parties are reminded of the following matters. Section 50 will not be breached unless the allegations Ms Chand says led to the detriment fell within one of the paragraphs of s 50(1). The only paragraph Ms Chand relied on was s 50(1)(c). The respondent submitted that only four of Ms Chand's triggers fell within that provision, namely the trigger in 4(a) about Dr Walsh, the trigger in 4(b) that she complained to Mr Plichta about Mr Dempsey, the trigger in 4(c) about Mr Cadry and the trigger in 4(d) about Mr Pias. The respondent said that many of the remainder of the complaints Ms Chand made were in the nature of protected disclosures. The respondent's submission on this point is summarised in the written submissions to the Tribunal at p 19. Ms Chand should address this point in her written submissions to the Appeal Panel.

50 Three of the "triggers" within s 50(1)(c) happened in 2000 and the complaint to Mr Plichta was made in July 2001. The respondent submitted to the Tribunal that there was a plausible reason for the way Ms Chand was treated between 18 June 2002 and 30 January 2003, that is, that she was subject to medical restrictions in terms of the people with whom she could work. Ms Chand should also address this point in her written submissions to the Appeal Panel.

51 Finally, in the Points of Claim Ms Chand listed eleven instances of "detriment" which the alleged triggers are said to have caused. Further particulars of those instances were provided. Some of those alleged detriments occurred after the period of complaint and cannot succeed for that reason. For example, one of Ms Chand's allegations, that she was denied redeployment, occurred in May 2004. In addition, the first time Ms Chand submitted a medical certificate to say that she was fit for pre-injury duties was 29 October 2003, which is outside the complaint period. The Appeal Panel has no jurisdiction to deal with a "detriment" which occurred outside the complaint period. Consequently, Ms Chand should not refer to those matters in the written submissions.

52 Remaining allegations of victimisation . In relation to the three remaining allegations of victimisation, the Tribunal made factual findings (at [80], [81] and [86]) that the events that Ms Chand said had triggered the detriment had not occurred. While Ms Chand disagreed with those findings, and pointed to evidence supporting her version of events, her disagreement does not justify re-opening those complaints. The Tribunal's finding that the events said to trigger the detriment had not occurred made it unnecessary for it to determine whether Ms Chand had suffered any detriment as a result of those events.

36 Following that decision, on 12 November 2008, RailCorp filed the Notice of Appeal/Notice of Contention document, which was in substance a notice of contention seeking to uphold the decision of the Tribunal on the basis that it had denied RailCorp natural justice concerning its determination to prefer the evidence of the appellant to that of Mr Hinien where there was conflict in their evidence, and erred in determining that there were three occasions when Mr Hinien read pornographic magazines in the presence of the appellant.

37 In its second decision given on 30 April 2009 ([2009] NSWADTAP 27), the Appeal Panel determined (1) that it had power to allow RailCorp to file the Notice of Appeal/Notice of Contention, (2) that the Tribunal had denied procedural fairness to RailCorp in relation to its finding concerning Mr Hinien, (3) that it should determine the merits of the complaints against Mr Hinien, and (4) that it was not satisfied on the balance of probabilities that the appellant's allegations against Mr Hinien were made out.

38 On the first of those questions, the Appeal Panel said this:

10 At the interlocutory hearing on 5 November 2008, Mr Knoll, representing Ms Chand, submitted that the Appeal Panel had no power to vary its previous decision to determine the merits of the application based on the findings of the Tribunal at [43] of its decision. Ms Nomchong, representing RailCorp, submitted that the Appeal Panel did have power to do so based on the principles enunciated by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117.

11 The general rule (known as functus officio ) is that once a person or body has exercised a statutory power or duty, that person or body has no further authority to exercise it again. The statutory powers or duties that the Appeal Panel exercised in the first decision were to make certain orders pursuant to s 114 and 115 of the Tribunal Act . So far as is relevant to the complaint of sexual harassment against Mr Hinien, the order that the Appeal Panel made was as follows:

Leave is given for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of sexual harassment involving Mr Hinien.

12 The Appeal Panel noted in the first decision at [45] that the only issues to be decided included "whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes 'unwelcome conduct of a sexual nature' in relation to Ms Chand, as set out in s 22A of the AD Act ?"

13 In Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117 the High Court discussed the circumstances in which a decision maker may re-open its 'decision'. Gaudron and Gummow JJ (McHugh J agreeing) decided at 129 to 130, that:

... a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.

14 The High Court confined the duty to re-open a decision to circumstances where there has been a jurisdictional error. Jurisdictional error occurs where, for example, the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires). Mr Knoll submitted that in this case RailCorp had not been denied procedural fairness, nor was there any error that would render the first decision a nullity. He made the point that at the time of the Appeal Panel's first decision on 2 October 2007, RailCorp had not filed a Cross Appeal or a Notice of Contention. Consequently, the issue of whether the Tribunal had erred by making an adverse credit finding in relation to Mr Hinien had not arisen.

15 Prior to the Appeal Panel making its first decision, there was no reason for RailCorp to file a Cross Appeal as the Tribunal's orders were in its favour. Nor could RailCorp have been aware of the need to raise a contention about the Tribunal's credibility finding prior to the Appeal Panel deciding that the complaint against Mr Hinien should be determined on the basis of the findings of fact made by the Tribunal. The Appeal Panel made that decision without first hearing from the parties as to whether that was the appropriate course having found an error of law in the Tribunal's reasoning. Prior to deciding the basis on which the merits of that complaint were to be determined, the Appeal Panel should have afforded the parties procedural fairness by allowing them to be heard on that issue. On that basis, if it is necessary to do so, we set aside our 'decision' to confine the issue to whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes "unwelcome conduct of a sexual nature" in relation to Ms Chand.

39 On the second of those questions, the Appeal Panel said this:

20 The Tribunal decided at [42] to prefer Ms Chand's evidence over Mr Hinien's wherever there was a conflict because giving evidence by phone deprived the Tribunal of the opportunity of forming a judgment as to Mr Hinien's demeanour. The background to this matter when it was before the Tribunal at first instance is that on 10 May 2006, during a case conference, the hearing dates of 1 to 15 November 2006 were allocated. RailCorp filed and served the affidavit of Mr Hinien on 17 October 2006 and made arrangements for Mr Hinien to be present for the purposes of cross-examination on the 3 November 2006, anticipating that by then Ms Chand would have finished giving her evidence. Mr Hinien had already made arrangements to go on annual leave but deferred his trip so that he could be available on that day. Later, the Tribunal vacated the first 3 days of hearing, (November 1 to November 3) on the application of Ms Chand. On 27 October 2006, RailCorp wrote to the Registry seeking leave for Mr Hinien to give his evidence by phone. The matter was listed for further directions on 6 November. RailCorp advised the Tribunal at that time that Mr Hinien had delayed his annual leave in order to be available on 3 November 2006. The following exchange occurred between the Judicial Member and the solicitor for RailCorp on 6 November:

JM Ireland: ... you stated in your letter of 27 October, you said that, just to reiterate, Mr Hinien had postponed a family holiday so he would be able to give his evidence and because the first three days this week have been vacated, he is most reluctant to reschedule his family holiday plans but he would be available interstate to give evidence on Tuesday, is that by phone?

Robinson: That's right.

JM Ireland: Ms Chand has objected to that, because she wants, as she says, to be able to cross-examine Mr Hinien directly and that she wants cross-examination to take place in front of the Tribunal so that the Tribunal can make judgments concerning Mr Hinien's responses. I have directed that we will hear Mr Hinien's evidence by phone but with the qualification that if the evidence is disputed in any material aspect, the Tribunal would reserve that position to recall Mr Hinien's new evidence before it at some later date .

Robinson: We're happy with that approach your Honour. (Emphasis added.)

21 On Monday 6 November a further 3 hearing days were vacated and the hearing was re-scheduled to commence on 9 November. By that date Ms Chand had secured Ms Gormly as her legal representative. Ms Gormly objected to Mr Hinien giving evidence by phone. In response JM Ireland said:

Well, I say it's our practice to take evidence by phone in circumstances where we consider it's justified, but I dealt with this because Ms Chand herself made strong objections. I put a heavy caveat on it, and it was namely that if the Tribunal having heard Mr Hinien's evidence by phone is not satisfied that the nature of his evidence is such that the Tribunal would accept it or as to its weight, then we reserve the right ourselves to call Mr Hinien .

So now that you're represented Ms Chand what I suggest is that we do (sic), subject to what Ms Nomchong wants to say about Mr Hinien's availability, we will hear Mr Hinien's evidence by phone and at the end of that I can hear submissions from both parties as to whether that evidence is evidence that the Tribunal should or should not accept. If then it's considered that a decision as to the acceptance of the evidence should await actually hearing directly from him, then we might call Mr Hinien at some later date when he is available to come here and go through his evidence in front of us .

... I don't want to make a final decision about that until we have actually heard his evidence on the phone, and it could be that the nature of his evidence itself is such that it's not that material, for example, although I doubt that ... (Transcript 9 November 2006, page 2, line 30 to page 3 line 15. Emphasis added.)

22 Mr Hinien gave evidence by phone on 10 November 2006. None of the Tribunal Members said that they had concerns about the veracity of the evidence or the weight that they might attach to it. Each party then filed written submissions. In Ms Chand's submissions, the only complaint about Mr Hinien's evidence being taken by phone was in relation to the Tribunal's ruling that Counsel for Ms Chand was not entitled to cross-examine Mr Hinien about his whereabouts when giving evidence as it was not considered relevant. However, after making that submission, Ms Chand, agreed with Judicial Member Ireland's proposition that:

Overall though, your point about Mr Hinien's evidence is that where there's a conflict between his evidence and the appellant's evidence we should prefer the Appellant's evidence because he wasn't in front of us, Mr Hinien wasn't in front of us when he gave his evidence.

23 The only occasion that the Tribunal made any comment as to whether Mr Hinien's credit was affected by the fact that he gave evidence by phone was at the end of the hearing straight after making the comment set out above, when JM Ireland said:

And the curious, if I can put it that way, situation where he elected to take leave during a period when he had adequate knowledge that he would be required to give evidence about what I would consider to be a serious allegation concerning him. (Transcript 24 November 2006, page 4, line 47 to page 5 line 34.)

24 Ms Nomchong's submission was that if the Tribunal intended to make an adverse credit finding against Mr Hinien on all of the substantive matters, it was incumbent on the Tribunal to raise that issue fairly and squarely with RailCorp or to follow its own 'caveat' and request Mr Hinien to give his evidence in person. She said that the fact that it did not do so and then decided to discount Mr Hinien's evidence on the sole basis that it was given by phone, was a breach of procedural fairness and represented a substantial injustice.

25 Mr Knoll's submission on behalf of Ms Chand was that RailCorp is seeking to disavow its application to have Mr Hinien give evidence by phone. He said RailCorp made a tactical decision to have Mr Hinien give his evidence by phone and "went on, seeking to win on the evidence presented": R McCrory; ex parte Rivett (1895) 21 VLR 3 at 6. Mr Knoll also said that despite the option of having Mr Hinien recalled to give evidence in person, RailCorp made no such application. He relied on the following passage from R v Magistrates' Court at Lilydale ex parte Ciccone [1973] VR 122 at 134 per McInerney J:

... if a man is entitled to one of two inconsistent rights, it is fitting that when, with full knowledge, he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which, after the first choice, is by reason of the inconsistency, no longer his to choose.

26 Mr Knoll submitted that RailCorp cannot be allowed to 'approbate and reprobate' having made its tactical decision. In addition, Mr Knoll submitted that the hearing dates of 1-15 November were set on 10 May 2006 with the approval of RailCorp and Ms Nomchong did not apply to have the matter adjourned so that Mr Hinien could give his evidence in person.

27 Conclusion . The Tribunal agreed to hear Mr Hinien's evidence by phone, with the caveat that after hearing that evidence it would determine whether it was necessary to hear from him in person. We agree with Ms Nomchong's submission that once the Tribunal had made its position clear, it was a breach of procedural fairness not to either raise its concerns with Ms Nomchong and invite her to make any relevant application or submission or to re-call Mr Hinien itself. Having received no indication of the Tribunal's view, there was no reason for RailCorp to apply for an adjournment to have Mr Hinien give his evidence in person. On that basis, the Tribunal's finding at [42] of the decision is set aside.

40 In relation to the victimisation complaint, the Appeal Panel found that the following "triggers" were established:

(1) complaints against Dr Walsh;

(2) a complaint about Mr Dempsey on 15 July 2001;

(3) a complaint against Mr Cadry on 14 February 2001;

(4) a complaint against Mr Pias on 14 February 2001; and

(5) a complaint about Ms Joshi in March 2002.

41 However, the Appeal Panel did not permit the appellant to rely on detriments beyond those pleaded before the Tribunal, saying this:

68 Detriments . Mr Knoll, representing Ms Chand, sought to rely, not only on several of the detriments pleaded before the Tribunal, but also on detriments which had not been identified in those proceedings. Mr Knoll highlighted several incidents which were documented in the President's Report and said that the Tribunal below had erred by not characterising these incidents as detriments. Ms Nomchong, for RailCorp objected to Mr Knoll re-formulating Ms Chand's case. She said that the evidence for the applicant in these proceedings is the two statements of Ms Chand including annexures. Although the President's Report was tendered and became an exhibit in the proceedings, Ms Nomchong says that it would be procedurally unfair for Ms Chand to point to incidents in the President's Report at this stage of the proceedings and claim that they constitute victimisation.

69 We agree with Ms Nomchong that it would be procedurally unfair to allow Mr Knoll to re-formulate Ms Chand's complaint at this stage. No application was made either to the Tribunal or the Appeal Panel for the complaint to be amended. Although the Tribunal may determine its own procedure and is not bound by the rules of evidence, it must apply the rules of natural justice: Tribunal Act , s 72. Ms Chand was represented by a lawyer in the Tribunal proceedings and by a different lawyer in these proceedings. She filed Points of Claim and responded to a request for further and better particulars of that claim. Although the Appeal Panel has extended the appeal to the merits of some aspects of the Tribunal's decision, that does not mean that Ms Chand should be permitted to re-formulate her case. Consequently we have not taken into account the alleged detriments referred to by Mr Knoll apart from those relied on before the Tribunal.

42 The detriments relied on by the appellant's counsel, within those that were raised before the Tribunal, were:

(1) that the appellant was refused mediation;

(2) that no consideration was given to her application for redeployment;

(3) that when she attended to resume work, she was told to seek reinstatement at the AIRC [Australian Industrial Relations Commission].

43 The Appeal Panel was not satisfied that detriment (1) occurred, but was satisfied that detriment (2) occurred and apparently was satisfied that detriment (3) occurred. However, the Appeal Panel was not satisfied that any of the detriments were on the ground of any of the triggers, giving the following reasons:

84 Causation . We consider now whether any of the detriments was "on the ground of" any of the triggers that occurred prior to 18 June 2002. The test to be applied in relation to complaints of victimisation is whether the fact that Ms Chand did any one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].

85 In relation to the complaints about Dr Walsh, we are not satisfied that it led to either of the detriments. It was made on 6 April 2000. Both of the 'detriments' took place some 2 years later, that is on or after June 2002. There is no direct evidence, nor any evidence from which an inference can be drawn that the complaint, made to the Human Resources Manager, led to either of the detriments Ms Chand is said to have suffered.

86 The remainder of the "triggers" occurred in a context where Ms Chand was also making numerous complaints about smoking in an office, which affected her asthma, and about alleged rorts and corruption under the Protected Disclosures Act 1994. Ms Chand's evidence was that she was called a whistle blower and a dobber as a result of these complaints. Throughout the period of the complaint there was considerable conflict between her and her fellow employees and managers. Given the long and acrimonious history of Ms Chand's employment relationship, we are not satisfied that four complaints she made alleging discrimination and harassment against fellow employees in 2001 and early 2002 were real or true reasons for making decisions about re-deploying her at the end of 2002 and early 2003. Nor are we persuaded that those complaints prompted Mr Metcalfe's comment in response to her return to work request.

Issues on appeal

44 The appellant relies on the following grounds of appeal:

1. The Honourable ADT Appeal Panel Members erred in allowing the Respondent, RailCorp to file a Notice of Contention in relation to Mr Hinien's credit finding in circumstances where neither the Tribunal Act nor the Administrative Decisions Tribunal Rules 1997 provide for the filing of a Cross Appeal or a Notice of Contention in Appeal Panel proceedings and RailCorp did not file such a notice. The Honourable Appeal Panel Members erred at law by not fulfilling " the role the Tribunal is meant to play " as stated by O'Connor DCJ in Curtin and most particularly in not complying with its obligations under s 73 of the AD Act .

2. In so doing the Appeal Panel erred in first deciding by way of its Decision of 2 October 2007 Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 (the "First decision) at [43]&[45] to allow RailCorp to re-agitate the credit finding of Mr Hinien when it has previously decided would not be revisited.

3. The Appeal Panel granted the Respondent, RailCorp, leave for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of sexual harassment involving Mr Hinien - almost a year after its first decision on the issue. The reasons for allowing RailCorp to file the Cross Appeal deny procedural fairness to the Appellant, Ms Bimla Chand.

4. In allowing RailCorp to file the Cross Appeal, Magistrate (Deputy President) Hennessy has shown bias towards RailCorp as seeking to extend the appeal to the merits of the Tribunal's decision is beyond the scope of the leave the Appeal Panel gave to RailCorp to file the Notice of Contention.

5. Ms Chand's counsel Mr Knoll's submitted that if the Appeal Panel were so minded to re-open the merits of matters by the Tribunal at first instance, Ms Chand would seek to re-open the question, at least, as to whether the conduct of Mr Plichta constituted a violation of the Anti Discrimination Act . The Appeal Panel did not allow Ms Chand the opportunity to re-open that question thus denying her procedural fairness.

Victimisation:

6. The Appeal Panel acknowledged the triggers and the consequences of those allegations as detriments but like the Tribunal erred in not allowing Ms Chand to amend her pleadings.

7. The Honourable Appeal Panel Members erred at law by taking into account irrelevant consideration and/or considerations without a proper basis in evidence. Some examples of these errors in law are that the Honourable Appeal Members erred in law by making a finding of fact, either expressly or by implication, viz that

The Appeal Panel acknowledged that RailCorp conceded that Ms Chand complained about sexual harassment and that this was sufficient to bring the allegation within s 50 of the AD Act and that the complaint against Dr Walsh is a "trigger" and then went on to conclude that it led to neither of the detriments and disregarded the cumulative .effect of the triggers.

The Appeal Panel accepted the third, fourth and fifth triggers but erred in not taking the detriments that followed into account.

8. The Appellant reserves the right to amend this Notice of Appeal upon receiving legal advice.

45 I will consider in turn the following issues:

(1) Notice of Contention issues (grounds 1 to 4);

(2) Discrimination complaints (ground 5);

(3) Victimisation complaints (grounds 6 to 8).

Notice of Contention issues

46 The appellant, who appeared self-represented on this appeal, submitted that the Appeal Panel erred in law in four broad respects:

(1) Having made a decision on 2 October 2007 that the Tribunal's finding that the incidents alleged against Mr Hinien occurred (first judgment [45]), the Appeal Panel erred in holding that it could re-consider that decision (second judgment [10] - [15]).

(2) The Appeal Panel erred in law in permitting RailCorp to file a notice of contention after its first judgment.

(3) The Appeal Panel denied procedural fairness to the appellant in exercising its discretion in favour of RailCorp so as to permit the filing of the Notice of Contention.

(4) The Appeal Panel denied procedural fairness to the appellant and made errors of law in overturning the Tribunal's decision that the incidents alleged against Mr Hinien occurred.

47 I will consider these four matters in turn.

48 As regards (1), the appellant submitted that the Appeal Panel did not have power to vary its decision in its first judgment, and that its reliance on the case of Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 was erroneous, because RailCorp was not denied a chance to be heard, there was no error that could render the first decision a nullity, and RailCorp had not even, at the time of that first decision, filed an appeal or notice of contention that would have enlivened a duty on the Appeal Panel to consider the questions which RailCorp later sought to raise.

49 It is important first of all to note what were the issues before the Appeal Panel on the occasion of its first judgment. The appellant had appealed to the Appeal Panel on questions of law, and had foreshadowed a possible amendment to extend the appeal to an appeal on the merits; but she had not made such an amendment or provided any documents specifying grounds for such an amendment.

50 The appellant's written submissions to the Appeal Panel were directed at establishing errors of law by the Tribunal, and they did not specifically address what orders the Tribunal should make if an error of law should be found. We were not directed to any oral submissions at the first Appeal Panel hearing that addressed this question, and as far as I can detect there were none. The errors of law alleged, if found, were not such as would of themselves give rise to findings of fact in favour of the appellant; and so it is difficult to see how the Appeal Panel could, without denying procedural fairness to either or both parties, have made findings of fact consequent on any findings of errors of law without providing for a further hearing. It could have sent the matter back to the Tribunal for a further hearing; but if it was to determine the matter itself, there would have needed to be a further hearing.

51 In those circumstances, it seems clear that the only final orders that the Appeal Panel could properly have made after its first hearing were orders either affirming or setting aside orders of the Tribunal, and orders remitting the matter to the Tribunal. It could have made orders extending the appeal to a hearing on the merits, but such orders would plainly not have been final orders; and without extending the appeal to a hearing on the merits, it might have given directions with a view to a further hearing before the Appeal Panel as to what orders should be made by the Appeal Panel "as it thinks appropriate in the light of its decision" within s 114(1) of the ADT Act, or "in substitution for an order made by the Tribunal" within s 114(2)(c) of the ADT Act.

52 What the Appeal Panel actually did was to make orders affirming and setting aside specified orders of the Tribunal, and orders extending the appeal to a hearing on the merits; and to give directions concerning the structure of the further hearing on the merits. These directions were plainly not final orders. The matters set out in par [45] of the Appeal Panel's first judgment were not the basis of any of the final orders made by the Appeal Panel, but only the basis of interlocutory directions concerning the structure of the further hearing; and as such they do not amount to findings that could give rise to res judicata or issue estoppel, or that are otherwise unalterable by the Appeal Panel: Blair v Curran (1939) 62 CLR 464 at 531-532, Ainslie v Ainslie (1927) 39 CLR 381 at 389. It is not necessary to consider whether a decision of the Tribunal would in any event give rise to an issue estoppel: cf Commonwealth v Sciacca (1988) 17 FCR 476 at 480, Wiest v DPP (1988) 23 FCR 472 at 522.

53 In my opinion, if the Tribunal had made a final order on the basis of the finding in par [45], it would have involved a denial of procedural fairness to RailCorp in the circumstances I have outlined; and the decision in Bhardwaj may then have applied. However, because no final order was made on the basis of the finding in question, it is not necessary to rely on that decision.

54 As regards points (2) and (3), in circumstances where the Appeal Panel had the power to re-consider the relevant finding, and where there was in any event to be a further hearing, the Appeal Panel clearly had a discretion to permit the late filing of a notice of contention.

55 In my opinion, RailCorp on receipt of the appellant's original Notice of Appeal, should have considered whether it would seek to uphold the orders of the Tribunal on a basis other than that adopted by the Tribunal; and if it had wished to say that the Tribunal should not have made the finding adverse to Mr Hinien on the basis that it did, it should have then filed a notice of contention. However, its failure to do so is to some extent explained by the absence of any existing application by the appellant to extend the appeal to a hearing on the merits, and the failure was not such as to preclude the Appeal Panel later granting leave to file a notice of contention.

56 In the circumstances discussed above, where there was in any event to be a further hearing in which the merits were to be considered, and where the issues raised at the first hearing did not involve any consideration of the merits, it was in my opinion a correct exercise of discretion to permit the late filing of the Notice of Contention. Certainly, in my opinion, it did not involve any error of law.

57 It was put for the appellant that it involved a denial of procedural fairness to her. I do not agree. The Notice of Contention was put on in sufficient time for her to address it at the second hearing, and there is no suggestion that it would have made a substantial difference to the way the first hearing had been conducted if the Notice of Contention had been put on earlier.

58 One contention in support of the claim of denial of procedural fairness appears to be that the Appeal Panel showed bias in favour of RailCorp, by granting indulgences to it, a large corporation represented by a large firm of solicitors and by counsel, while at the same time it denied indulgences to herself, an indigent and sometimes self-represented litigant, in relation to her requests to include matters outside the Points of Claim.

59 In my opinion, this contention has no substance.

60 I accept that a court or tribunal must be concerned to ensure, as far as possible, that an unrepresented litigant has a fair opportunity to put his or her case, and is not unfairly disadvantaged in doing so by lack of understanding of court procedures. But the court cannot assist unrepresented litigants in such a way as to give them an advantage over other litigants, and in the exercise of discretions a court must act on the same principles for represented as for unrepresented litigants.

61 The decision of the Appeal Panel to exercise its discretion in favour of RailCorp to allow it to file its Notice of Contention out of time was in my opinion a correct application of principles applicable to such questions: indeed, a different decision would have been surprising. And, as I will indicate below, the decisions of the Appeal Panel not to permit the appellant to widen her case in various respects were also correct applications of principles applicable to such questions.

62 As regards point (4), it was contended by the appellant that the Appeal Panel should not have overturned the Tribunal's finding that the incidents alleged against Mr Hinien occurred; and that the Appeal Panel denied her procedural fairness in reaching the opposite conclusion.

63 In my opinion, once the appeal in relation to Mr Hinien was extended to an appeal on the merits, in which the correctness of the Tribunal's finding that the incidents in question occurred was in issue, the Appeal Panel had no alternative but to set aside that finding.

64 In my opinion, the Appeal Panel was correct, for the reasons it gave, in holding that it was a breach of procedural fairness for the Tribunal to make findings adverse to RailCorp in relation to Mr Hinien, without either itself recalling Mr Hinien or advising RailCorp that it was considering making a finding adverse to RailCorp purely on the basis that Mr Hinien gave evidence by telephone.

65 I would add that, despite the provisions of s 73(1), (2) and (3) of the ADT Act, for the Tribunal to decide a disputed question of fact in the way it did was arbitrary and non-rational, and for that reason also the decision had to be set aside. It may be that, if a court or tribunal concludes that a party or witness deliberately arranges matters in order that a witness does not attend and give evidence in the usual way, this could be a ground for giving less weight to the evidence of that witness; but in this case, the Tribunal made no such findings.

66 In circumstances where Mr Hinien was not a party to the proceedings, and there was no reason to disbelieve the explanation that he had postponed a family holiday in order to give evidence at the hearing as originally fixed but was reluctant to re-schedule the holiday so as to give evidence at the adjourned hearing (adjourned on the appellant's application), such a finding in any event would not properly have been made. The comment of J M Ireland recorded at [23] of the Appeal Panel's second decision, was in my opinion inappropriate and unjustified.

67 If a court or tribunal is unable to find a rational basis for preferring the evidence of one witness to that of another, when one asserts and the other denies the existence of a fact in issue, there is no other evidence on the point, and the circumstances do not justify the taking of further evidence, there is no reasonable alternative but to find that the onus of proof has not been discharged.

68 Having determined correctly that the Tribunal's finding of fact about Mr Hinien had to be set aside, the Appeal Panel had three possible alternatives:

(1) To remit the matter for a further hearing by the Tribunal;

(2) To decide the matter itself on the existing materials; or

(3) To decide the matter itself after taking further evidence.

69 In my opinion, having regard to the long history of the matter, it was not an error of the Appeal Panel, and certainly not an error of law, for the Appeal Panel to take the second of those three alternatives; and Mr Knoll, counsel for the appellant before the Appeal Panel, did not suggest otherwise. And having taken that course, in my opinion there was no error by the Appeal Panel, and certainly no error of law, for the Appeal Panel to find that the occurrence of the incidents alleged against Mr Hinien had not been proved.

70 On this matter two particular concerns were raised by the appellant.

71 One was that the appellant was denied procedural fairness by the Appeal Panel finding that she regarded magazines such as "Cosmopolitan" or "Cleo" with photographs of semi-clad women, as pornographic, when her evidence was that it was pictures of naked women that she considered to be pornography. However, it was open to the Appeal Panel to take the appellant's response ("I would not tell the difference, as far as I am concerned anything related to naked women is pornography") to a suggestion in cross-examination that what she saw was "Mr Hinien reading magazines like Cosmopolitan or magazines like that where there was semi-clad women, but not pornographic magazines" as supporting the finding which it made. In my opinion, this was not any kind of error, and certainly not an error of law or a denial of procedural fairness; and the assertions to this Court by the appellant that she does not regard magazines like Cosmopolitan or Cleo to be pornographic cannot alter this.

72 The other complaint was that the Appeal Panel did not permit the appellant to rely on evidence supporting her complaints, in particular a statement of Ms Fui Fui. That statement was mentioned by Mr Knoll at page 15 of the transcript of 25 February 2009 (supplementary Black/Blue book 333). However, Mr Knoll did not ask that the Appeal Panel receive that statement, and did not suggest that Ms Fui Fui would be available for cross-examination. There was no error therefore by the Appeal Panel, and certainly no error of law or denial of procedural fairness.

73 Accordingly, grounds (1) to (4) fail.

Discrimination complaints

74 It was contended for the appellant that she was denied procedural fairness in that, in circumstances where the Appeal Panel allowed RailCorp the indulgence of contesting the Tribunal's finding that the incidents alleged against Mr Hinien occurred, the Appeal Panel did not permit her to re-open her allegation of race and disability discrimination as referred by the ADB President to the Tribunal in the first instance.

75 I have not been able to identify any specific application made by the appellant's counsel to re-open the question of discrimination, or any specific refusal by the appellant to permit this. However, in circumstances where the complaint of discrimination was omitted from the Points of Claim of 13 January 2006 and not thereafter pursued, and where there had already been a lengthy hearing before the Tribunal in November 2006, and one appeal hearing in August 2007, it could not have been a reasonable exercise of discretion for the Appeal Panel to permit the addition of complaints of discrimination in March 2008 or February 2009.

76 In my opinion ground (5) is without merit or substance.

Victimisation complaints

77 As noted in [33] above, the Appeal Panel found that the Tribunal erred in its interpretation of the amendment power in s 103 of AD Act; and RailCorp does not contend that the Appeal Panel was wrong in its wider construction. I note also that the decision relied on by the Tribunal in reaching its narrower construction has been overturned on appeal: Zhang v Blinds Pty Ltd [2008] NSWADTAP 24.

78 However, the Appeal Panel did not permit the appellant to amend her claim so as to include alleged detriments occurring to her after the end of the complaint period on 30 January 2003.

79 The appellant submits that the Appeal Panel erred in its dealings with victimisation complaints in the following respects:

(1) in not permitting an amendment to include alleged detriments after 30 January 2003;

(2) in not taking into account the effect of the totality of the triggers, including those occurring after the commencement of the complaint period on 18 June 2002;

(3) in taking into account irrelevant considerations without a proper basis in the evidence; and

(4) in failing to find causation by the triggers of any of the detriments.

80 As regards (1), at [68] - [69] of its second decision, the Appeal Panel noted that the appellant's counsel had sought to rely on detriments that had not been identified in proceedings before the Tribunal. The Appeal Panel also noted that no application had been made either to the Tribunal or to the Appeal Panel itself for "the complaint" (meaning presumably the Points of Claim and/or particulars) to be amended. In those circumstances, it could not have been an error of law or denial of procedural fairness for the Appeal Panel not to have allowed an amendment under s 103 to include detriments allegedly inflicted after 30 June 2003.

81 In any event, even if what counsel did say was to be understood as an application to amend pursuant to s 103, a decision not to permit such an amendment was an appropriate discretionary decision. The matter had been contested before the Tribunal on the basis of the Points of Claim and on further and better particulars supplied pursuant thereto; and no document seeking to amend the Points of Claim or particulars was submitted to the Appeal Panel. In the absence of such a document, it would have been a clear denial of procedural fairness to permit the appellant to rely on triggers or detriments outside the Points of Claim and the particulars. Even if such a document seeking to amend the Points of Claim or particulars had been submitted, it is very doubtful that it could have been a correct exercise of discretion to permit an amendment at the stage of the second hearing before the Appeal Panel.

82 In my opinion, the Appeal Panel's failure to permit amendment to include post-30 January 2003 detriments cannot be considered either an error of law or a denial of procedural fairness.

83 As regards point (2), one contention of the appellant is that the Appeal Panel should have had regard to triggers occurring after 18 June 2002. The relevant triggers were those identified in par [68] of the Tribunal's judgment, as follows:

4(b) complaint to Mr Platt in October 2002.

4(e) complaints referred to Mr Mark Abel and Mr Karouche in September 2002.

4(f) complaints to Mr Platt in October 2002 and November 2002.

4(g) complaints to Mr Pelecta in early October 2002 and then to Mr Platt and Ms Phillips on 15 October 2002 and in November 2002.

84 The Tribunal was not satisfied that any of these complaints occurred (Tribunal judgment [81], [86], [91]). No error was found by the Appeal Panel in relation to those findings of the Tribunal, and there was no occasion for the Appeal Panel to revisit them.

85 The appellant's second contention is that, in relation to the triggers that the Appeal Panel did consider, i.e. those occurring before 18 June 2002 and on that basis disregarded by the Tribunal, the Appeal Panel only considered their individual effect, not the effect of the totality.

86 In my opinion, it is clear from par [86] of the Appeal Panel's second judgment, in particular its reference to "four complaints", that the Appeal Panel did consider the causative effect of the totality of those triggers that it found to have been established.

87 As regards (3) and (4), these are at best allegations of errors in fact finding, and could not amount to errors of law. The appellant's general complaint is that it was clear that she suffered detriments as found by the Appeal Panel, and ultimately was dismissed by RailCorp; and that RailCorp did not establish any other reason for this apart from matters that were triggers under the AD Act.

88 In my opinion, it was open to the Appeal Panel to find, as it did in par [86] of its second judgment, that there was considerable conflict between the appellant and her fellow employees and that there was a long and acrimonious history of her employment relationship. On that basis, it was open to the Appeal Panel not to be satisfied that the detriments suffered by the appellant were caused by the triggers that she had established. There was no error of fact finding by the Tribunal in that respect, much less any error of law or denial of procedural fairness.

Conclusion

89 For those reasons, in my opinion, the appeal should be dismissed with costs.

90 CAMPBELL JA: I agree with Hodgson JA.

91 SACKVILLE AJA: I agree with the orders proposed by Hodgson JA and with his Honour's reasons.

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Decision last updated: 12 April 2011