FEDERAL COURT OF AUSTRALIA

 

Pembroke School Incorporated v Human Rights and Equal Opportunity Commission

 

[2002] FCA 1020

PRACTICE AND PROCEDURE – application to re-open proceedings after judgment and orders formally entered - ground of new evidence – whether jurisdiction exists to do so – grounds upon which jurisdiction (if it exists) might be exercised – whether grounds made out - jurisdiction to re-open application for review of Commission’s decision in circumstances where the Commission’s decision is alleged to have been effected by fraud – whether exceptional circumstances – whether ground made out.

ADMINISTRATIVE LAW – ostensible bias – waiver.

 

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 5(1)(a), 5(1)(b), 5(1)(e), 5(1)(g), 5(2)(b)

Disability Discrimination Act 1992 (Cth), ss 5, 6, 22, 22(2), 22(2)(a), 23, 23(1)(c), 24, 37, 79(1), 83, 98

Federal Court Rules, O 35 r 7(2), O 36

Human Rights & Equal Opportunity Commission Act 1986 (Cth), s 42

School v Human Rights and Equal Opportunity Commission [1998] FCA 1455

Munroe Schneider Associates (Inc.) v No.1 Raberem Pty Ltd (No.2) (1992) 37 FCR 234 - discussed

Darling Downs Investments Pty Ltd v Elwood (1988) 18 FCR 510 – referred to

Elna Australia Pty Ltd v International Computers (Aust.) Pty Ltd (1987) 14 FCR 461 – referred to

Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 - discussed

Donkin v AGC (Advances) Ltd [1995] FCA 696 - discussed

Autodesk Inc. v Dyason (No.2) (1993) 176 CLR 300 - discussed

Autodesk Inc. v Dyason (1992) 173 CLR 330 – referred to

State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 – referred to

Jovanovic v The Queen (1999) 92 FCR 580 - discussed

McDonald v McDonald (1965) 113 CLR 529 – referred to

Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 – referred to

Smith v NSW Bar Association (1992) 176 CLR 256 - cited

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 - discussed

Orr v Holmes (1948) 76 CLR 632 – referred to

Greater Woollongong Corporation v Cowan (1995) 93 CLR 435 – referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1980) 162 CLR 24 – referred to

Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186 - cited

Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644; [2000] HCA 64 – referred to

R v Watson; Ex parte Armstrong (1976) 136 CLR 248 – referred to

Dickason v Edwards (1910) 10 CLR 243 – referred to

Maloney v New South Wales National Coursing Association Ltd (1978) 1 NSWLR 161 – referred to

Vakauta v Kelly (1989) 167 CLR 568 – referred to

Preston v Carmody (1993) 44 FCR 1 – referred to

Najjar v Haines (1999) 25 NSWLR 224 – referred to

PEMBROKE SCHOOL INCORPORATED v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and MERELYN COWELL (on behalf of herself and FLEUR COWELL)

 

SG.45 of 1998

 

 

 

 

 

 

MANSFIELD J

19 AUGUST 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG.45 OF 1998

 

BETWEEN:	PEMBROKE SCHOOL INCORPORATED APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT   MERELYN COWELL (on behalf of herself and FLEUR COWELL) SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	19 AUGUST 2002
WHERE MADE:	ADELAIDE

 

THE COURT ORDERS THAT:

 

1.         The application of the second respondent by notice of motion dated 16 August 2001 is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG.45 OF 1998

 

BETWEEN:	PEMBROKE SCHOOL INCORPORATED APPLICANT
AND:	HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION FIRST RESPONDENT   MERELYN COWELL (on behalf of herself and FLEUR COWELL) SECOND RESPONDENT

 

JUDGE:	MANSFIELD J
DATE:	19 AUGUST 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

introduction

1                     This is an application by notice of motion dated 16 August 2001 by Merelyn Cowell (Ms M Cowell) and by Fleur Cowell (Ms F Cowell), to whom I shall refer together as the Cowells, in the following terms:

“To re-open the application heard by Justice Mansfield in May 1998, as the Second respondent was prevented from fully exercising their rights.  Leave of the court to produce new evidence.”

2                     It is necessary to recite some history to put the application into context.  The application to which the motion refers was an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) to review a decision of the Human Rights and Equal Opportunity Commission (the Commission) given on 23 March 1998.  The Commission did not appear on the hearing of the motion, but indicated it would submit to any order the Court made save as to costs.

3                     The Commission’s decision followed an inquiry under s 79(1) of the Disability Discrimination Act 1992 (Cth)(the DD Act) concerning a complaint lodged by Ms M Cowell on her own behalf and on behalf of her daughter Ms F Cowell, then a minor.  Ms F Cowell is now over 18, and appears in her own right.  The complaint alleged both direct and indirect discrimination by Pembroke School Inc. (the School) in relation to Ms F Cowell’s education at the School in the calendar years 1994, 1995 and 1996.  Ms F Cowell suffered from a disorder of her right hip, and the complaint concerned the School’s treatment of her during those years having regard to that disability.

4                     The complaint was that:

(1)        the School, in providing educational services to Ms F Cowell, engaged in direct discrimination by treating her less favourably than students without a disability, in that she was not provided with adequate work or supervision during those periods when she was unable to attend the School or worked in the library:  s 5 of the DD Act;

(2)        the School, in providing educational services to Ms F Cowell, engaged in indirect discrimination by imposing a requirement or condition that she should regularly attend upstairs classrooms in order to access the education provided by the School, and that she could not comply with that requirement or condition and that it was unreasonable in the circumstances:  s 6 of the DD Act; and

(3)               in the first term of 1996, two of the teachers at the School, when Ms F Cowell returned to the School on crutches after a period of absence, made remarks to her which constituted harassment, and that another teacher in term four in 1995 also made remarks to her which constituted harassment:  s 37 of the DD Act.

5                     The Commission found that:

(1)        Ms F Cowell had been subjected to less favourable treatment by the School by reason of her disability, and so found that the complaint of direct discrimination was made out, but it concluded that the School was only responsible for 25% of any damages suffered by Ms F Cowell as a result;

(2)               the complaint of indirect discrimination was not made out;

(3)               the complaint of harassment by two teachers in term one of 1996 was not made out; it did not make a finding concerning the complaint of harassment by a teacher in term four of 1995.

6                     The School sought judicial review of the decision of the Commission that it had engaged in direct discrimination under the ADJR Act.  In addition, the Cowells by cross-application sought judicial review of that decision of the Commission insofar as it apportioned the consequences of direct discrimination to the deterioration in Ms F Cowell’s health only at 25%, and in relation to its decision that the School had not engaged in indirect discrimination, and in relation to its failure to deal with one complaint of harassment.  They did not seek review of the decisions of the Commission with respect to the other two complaints of harassment.

7                     It is those applications which are the application to which the notice of motion refers.  Those applications came on for hearing before me.  Judgment was given on 11 November 1998:  School v Human Rights and Equal Opportunity Commission [1998] FCA 1455.  The judgment sets out in considerable detail the nature of the allegations, the nature of the Tribunal’s findings, and the reasons for the decision.  I shall refer to that material only so far as it is necessary to deal with the present application.  I note that the Cowells were legally represented on that application by senior counsel.  The orders made were that:

(1)               the decision of the Commission that the School directly discriminated against Ms F Cowell contrary to s 5 and s 22(2) of the DD Act, and that the School was responsible for a specified percentage of any damages suffered by Ms F Cowell, be set aside;

(2)               the question of whether the School directly discriminated against Ms F Cowell contrary to s 5 and s 22(2) of the DD Act, and the determinations which might then be made if such discrimination is made out, be referred back to the Commission for rehearing in accordance with the reasons for decision;

(3)               the Commission hear and determine the complaint of harassment and breach of s 37 of the DD Act in respect of the incident alleged in 1995, and

(4)               in all other respects the decision of the Commission given on 23 March 1998 is affirmed.

In substance, the decision of the Commission that the School had engaged in direct discrimination was set aside, and that issue remitted to the Commission for re-hearing.  The consequence of that order was that the issue as to the apportionment which the Commission determined was also a matter which the Commission was required to revisit.  In addition, because the Commission had not dealt with one complaint of harassment, it was directed to do so.

8                     The Commission’s decision that the School had not engaged in indirect discrimination was upheld.  The decision of the Commission that two of the complaints of harassment had not been made out was not challenged, and so was not revisited.

9                     The material before me indicates that, following the decision on 11 November 1998, the matters remitted to the Commission have been reheard by it.  A decision has been given by the Commission on 15 October 2000.  As I understand it, separate proceedings have been brought by the Cowells under the ADJR Act to review that decision.  Those proceedings have been adjourned pending the outcome of the present motion.

10                  No appeal was brought from the decision of 11 November 1998.

11                  The Cowells were represented by senior counsel on the hearing of that application.  However, on this notice of motion, they have appeared in person.  Understandably, they do not appear to have fully appreciated the limited circumstances in which the Court may permit a matter to be re-opened and to allow fresh evidence to be called or fresh arguments to be addressed, or to set aside a judgment other than by way of appeal, once judgment has been delivered.  In an endeavour to have them focus on the sort of matters which it may be necessary to address to procure such orders, which is the substance of the orders now sought, they were directed to file material to identify clearly the bases upon which they now sought to re-open the application hearing.  They filed extensive material, much of which is repetitive, in response to directions or requests of the Court designed to ensure that they put before the Court all that they wished to and that they identified for the Court and the School those matters upon which they relied.  Ultimately, the material identified as relevant to the present motion by the Cowells is as follows:

• document entitled Amended Statement of Claim 6 February 2002 (two identical versions);
• document entitled Amended Supplementary Statement of Claim dated 6 February 2002 (two versions)
• affidavit of Ms M Cowell sworn 4 February 2002;
• affidavit of Ms F Cowell sworn 4 February 2002;
• notice of contentions of Ms M Cowell dated 31 January 2002;
• notice of contentions of Ms F Cowell dated 31 January 2002
• Amended Proposed Grounds to Seek Further Review dated 4 February 2002;
• document entitled Second Respondent’s Further Submissions dated 21 February 2002 (two different documents),

and from the School:

• notice of Issues of the School in response to the Cowells’ proposed grounds to seek further review of decision, filed 25 January 2002;
• submissions of the School in response to second respondent’s further submissions, filed 26 March 2002;
• documents entitled Defence of the School to the Statement of Claim of the Cowells, filed 11 December 2001 (two versions).

In addition, the parties made oral submissions at a hearing.

12                  Ms M Cowell and Ms F Cowell filed separate but largely identical documents in many respects.  I have had regard to all of that material.  It is difficult to discern a clear and consistent line of approach on the part of the Cowells from their material, as it does not consistently adopt the same issues.  The numbering and heading of some documents is confusing or overlapping.  However, ultimately, in my view, the appropriate starting point is the document entitled Amended Proposed Grounds to Seek Further Review of decision of 23 March 1998, that is the Commission’s decision, filed on 4 February 2002.  It appears to be the document upon which the Cowells based their oral submissions.  It contains seven grounds upon which, in substance, the Cowells seek to re-open the application to review the decision of the Tribunal or to set aside the judgment.

the principles

13                  It is unclear precisely what it is that the Cowells want.  In the affidavits which each has filed, there are headings referring to “late appeal” and “new evidence”.  Although those affidavits refer to a late appeal, it is clear from the oral contentions and from other written contentions that the Cowells appreciate that the application to the Court as presently constituted is not by way of appeal from the decision given on 11 November 1998.  There are, it seems to me, two possible ways in which the present application could be approached:

1.                  As an application to re-open the case which was heard before me and was the subject of the decision given on 11 November 1998; or

2.                  As a separate and distinct proceeding in the nature of a fresh proceeding applying to set aside that judgment on the ground that it was procured in some way by fraud.

14                  There are, in my view, some doubts as to whether the Court as presently constituted could permit the re-opening of the case completed by the judgment given on 11 November 1998.  The judgment of 11 November 1998 was regularly entered under O 36 of the Federal Court Rules.  No appeal was brought from the judgment.  I note that O 35 r 7(2) of the Rules provides:

“The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:

(a)               the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

(b)               the order was obtained by fraud;

(c)                the order is interlocutory

(d)               the order is an injunction or for the appointment of a receiver;

(e)                the order does not reflect the intention of the Court; or

(f)                 the party in whose favour the order was made consents.”

 

The Cowells do allege that the Commission’s orders were obtained by fraud, but as I understand their position it is not contended that the judgment of the Court was itself obtained by fraud.  No other subclause of O 35 r 7(2) could be relevant to the present circumstances.

15                  In Munroe Schneider Associates (Inc.) v No.1 Raberem Pty Ltd (No.2) (1992) 37 FCR 234 (Raberem), circumstances somewhat like the present procedural circumstances arose.  A judgment had been entered in favour of the respondents against the appellants, an appeal from that decision had been dismissed and an application for special leave to appeal to the High Court had been unsuccessful.  Subsequently, the appellants filed an application and a statement of claim seeking orders setting aside the judgment obtained against them on the grounds of discovery of new evidence, material non-disclosure of new evidence, and fraud.  The Court (Spender, Gummow and Lee JJ) decided that the Court had jurisdiction to entertain an application to impeach the earlier judgment and orders of the Court.

16                  The Court first addressed the question of whether, after exhaustion of the appellate process, an action lies to set aside a judgment on the ground of fresh evidence alone.  The Court decided that such jurisdiction existed:  Darling Downs Investments Pty Ltd v Elwood (1988) 18 FCR 510 at 518-526, and Elna Australia Pty Ltd v International Computers (Aust.) Pty Ltd (1987) 14 FCR 461 at 465-467.

17                  At 238-239, the Court identified the jurisdiction in an original action to impeach the earlier judgment for fraud is equitable in origin and nature, and said that the stringent principles established by the authorities confine the jurisdiction to set aside a judgment on the ground of fraud to circumstances where:

• The evidence of fraud has been newly discovered since the trial;
• The evidence could not have been found by the time of the trial by the exercise of reasonable diligence;
• The evidence is so material that its production at the trial would probably have affected the outcome, and when the fraud charged consists of perjury then the evidence must be so strong that it would reasonably be expected to be decisive at a re-hearing, and if unanswered must have that result.

At 242, it was pointed out that the fraud must be “directly material” to the judgment, so that evidence going to a collateral issue such as the credit of witnesses who gave evidence and were cross-examined at the trial may well lack the necessary materiality.  In that case the Court concluded at 244:

“Each example of allegedly fresh material evidence was no more than a contribution of further evidence to issues already litigated in the trial.  The additional evidence bearing no stamp ex facie that if received at trial in all probability it would have reversed the judgment it could not have satisfied the standard requirement for any action of this nature contended for in the statement of claim.”

18                  The public interest in the finality of litigation by judgment is explained by Kirby P in Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 at 538.  Suspicion of fraud is insufficient.  There must be evidence of the new facts, and they must be so material that the claim to set aside the judgment will probably succeed.  There is conflicting evidence in almost all contested litigation, and a defeated party often considers that the successful party behaved dishonourably.  However, if all unsuccessful litigants could apply to have the judgment set aside, the courts would be overburdened with reviewing first instance decisions.  That too would weaken the finality of judgments.  Thus the stringent test is imposed, including showing that the successful party was responsible for the fraud that taints the judgment under challenge.  Kirby P at 539 said:

“(The challenging party) must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury … and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such parties should take the benefit of the judgment.”

Hope and Samuels JJA agreed.

19                  In Donkin v AGC (Advances) Ltd [1995] FCA 696 both Black CJ at 3 and Davies J at 9 were prepared to assume that the Court has jurisdiction, not confined to cases of fraud, to allow a case to be re-opened even after an appeal has been heard and determined and the order at first instance duly entered.  In that case, the application was to the Full Court in effect either to set aside the judgment at first instance or to re-open an appeal where the Full Court had dismissed an appeal from the judgment at first instance.  Both Black CJ at 2 and Davies J at 9 pointed out that any such jurisdiction is to be exercised with great caution having regard to the public interest in the finality of litigation.  Davies J said at 9 that, upon the assumption referred to, the Court might re-open a case:

“if there were a truly exceptional circumstance apart from fraud which required a matter to be re-opened in the interests of justice.”

In Autodesk Inc. v Dyason (No.2) (1993) 176 CLR 300, the High Court refused to vacate a judgment given but not entered (see Autodesk Inc. v Dyason (1992) 173 CLR 330) on the ground that, without fault on their part, the unsuccessful respondents had no opportunity to be heard on three issues decided in the initial judgment.  Mason CJ (with whom Deane J agreed) dissented.  His Honour’s view may be taken to have adopted a view as to the jurisdiction of the Court to vacate its earlier judgment which is that most favourable to the Cowells’ present motion.  His Honour said at 301-302:

“The exercise of the jurisdiction to reopen a judgment and to grant a hearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant’s part, he or she has not been heard.  It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation.  It is equally true, as this Court said in Wentworth v Woollahra Municipal Council, that ‘[g]enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.’

But these statements do not exclude the exercise of jurisdiction to reopen a judgment which has apparently miscarried for other reasons, at least when the orders pronounced have not been perfected by the taking out of formal orders.”

Those remarks are in relation to the case where the orders have not been formally entered.  His Honour was also moved to observe upon the desirability of the Court, as a final court of appeal, having the capacity to rectify an error arising from some miscarriage of justice (at 302).  See also the comments of Mason and Wilson JJ in State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 at 38.

20                  The Full Court (Wilcox, Miles and Weinberg JJ) in Jovanovic v The Queen (1999) 92 FCR 580 (Jovanovic) extensively reviewed the authorities as to when a judge at first instance becomes functus officio.  Their Honours came to the view, in the light of the relevant legislation then under consideration, that a judge at first instance has no power, except under the inherent power to correct “slips” (that is when the entered judgment does not reflect the intention of the Court) to re-open a case once judgment has been formally entered.

21                  I do not think it is necessary to finally decide that issue.  I am prepared to assume that in exceptional circumstances, and beyond cases of fraud (see O 35 r 7(2)(b)), the Court at first instance may re-open a case even following a judgment which has been formally entered if the interests of justice require it, even though I have significant doubts as to the existence of such jurisdiction for the reasons given by the Full Court in Jovanovic.

22                  In the case of an application to set aside a judgment said to have been procured by fraud, it is desirable that a separate proceeding be instituted:  see McDonald v McDonald (1965) 113 CLR 529 at 533; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 699.  The Cowells have not proceeded in that manner.  I do not think that is fatal to their application.  If it becomes necessary, it would be possible to give directions which had the effect of isolating the notice of motion of 16 August 2001 so that it is treated as a fresh proceeding.

23                  In Smith v NSW Bar Association (1992) 176 CLR 256 at 266-267, Brennan, Dawson, Toohey and Gaudron JJ said:

“If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing.  If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application:  Barker v Furlong [1891] 2 CH 172 at 184; Hughes v Hill [1937] SASR 285 at 287.  Assuming that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete; as e.g. in Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88;  Murray v Figge (1974) 4 ALR 612, or one in which reasons for judgment have been delivered:  as e.g. in Re Scott & Alvarez’s Contract [1895] 1 CH 596. … In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised.”

 

24                  The circumstances in which the Court on appeal may order a new trial due to the failure of a successful party in an action to comply with an order for discovery of documents, so that relevant evidence under that party’s possession or control has remained undisclosed until after judgment, was addressed by the High Court in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.  The Court (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ) referred to Orr v Holmes (1948) 76 CLR 632 and Greater Woollongong Corporation v Cowan (1995) 93 CLR 435 as identifying the general rule in which an appellate court is justified in setting aside a verdict on the grounds of fresh evidence.  Dixon CJ in the latter case, in comments with which other members of the Court (Williams, Webb, Kitto and Taylor JJ) concurred, said at 444:

“If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice.  The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled.  It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.  Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.”

As the Court in Quade pointed out, there is the possibility of exceptional circumstances justifying a departure from the general rule, even in the class of case to which the general rule is directed.

25                  Quade was not concerned with the ordinary case, because the proposed fresh evidence was unknown to the unsuccessful party at the time of the hearing by reason of misconduct on the part of the successful party by its failure to comply with the requirements of the order for discovery.  In the ordinary case, as their Honours in Quade pointed out at 141, the reconciliation of the demands of justice and the policy that there be an end to litigation at least prima facie dictates that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict.  Their Honours said:

“Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest.  Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial.  Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case.  If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.”

See also McDonald per Barwick CJ at 533.

26                  In Quade, the Court refrained from seeking to enunciate a general rule to be applied by an appellate court to determine whether a new trial should be ordered in a case where misconduct on the part of the successful party has had the result that relevant evidence in his possession has remained undisclosed until after the verdict.  The appellate court will be called upon to determine what will best serve the interest of justice, either particularly in relation to the parties or generally in relation to the administration of justice.  In addition to the general considerations relating to the administration of justice, factors such as the degree of culpability of the successful party, any lack of diligence on the part of the unsuccessful party, and the extent of any likelihood that the result would have been different if the order for discovery had been complied with and the non-disclosed material had been made available will be considered.  It should appear that there is at least a real possibility that the additional information would have resulted in an opposite result.

27                  In considering the Cowells’ motion, as I have indicated, I am prepared to assume that the Court has jurisdiction to entertain an application to re-open the case notwithstanding the formal entry of judgment following the decision given on 11 November 1998, and that it may do so on grounds extending beyond fraud.  I am also prepared to accommodate any procedural deficiencies in the vehicle by which they have chosen to pursue that application.  Nevertheless, whether the application is based on fraud, or on the discovery of fresh evidence, or on other grounds, it will only be a rare case in fact where the interests of justice will result in the re-opening of the case.  As the Full Court’s decision in Raberem shows, even if the motion were treated as a fresh action to set aside the judgment on the ground of fraud, there are significant hurdles to overcome before any such application would be successful.  Moreover, in this matter, the claim of fraud against the School is said primarily to infect the Commission’s decision rather than that of the Court.  In a sense, the circumstances are one step removed from the circumstances in Raberem.  The finding of fresh evidence also, in a primary sense, goes to whether the Commission’s decision should be re-opened.  It is not clear that the “fresh evidence” of Ms F Cowell’s diary is said to provide or fortify a ground of review under the ADJR Act which would not previously be pursued or pursued effectively, as distinct from a claimed basis to re-open the Commission’s decision.

28                  It will be necessary to bear in mind clearly the nature of the present application when addressing the contentions.

the delay

29                  In the affidavits of the Cowells, there is an explanation offered for the delay in making the present application.  They refer to having written to the President of the Commission in February 1999 requesting a fresh hearing at large, but claim that their request was declined because the order made on 11 November 1998 directed a fresh hearing on limited issues.  That hearing has taken place.  The Cowells depose to having learned in January 2000 from research of legal resources of possible arguments which might have been presented on the hearing of their application to the Court which were not presented.  They have consulted with the “Australian Administrative Appeal Tribunal”, with the Commonwealth Ombudsman, and with the Office of the Commonwealth Attorney-General.  Advice was sought from three other solicitors regarding possible ways in which the matters the Cowells then wished to ventilate might be ventilated as if at the first hearing before the Court.  They depose further to having consulted with an officer of the Court at its registry to be told that they could not revive or make the present application simply by filing an affidavit.  That was clearly correct advice.  They then decided to await the outcome of the second Commission hearing.  The decision in that matter was given on 15 October 2000.  The present application was made, in some form, on 2 March 2001.  It took a series of directions hearings before the Cowells identified their chosen method of proceeding, identifiable by the notice of motion of 16 August 2001 to which I have referred at the commencement of these reasons.

30                  I do not think the explanation for the delay is entirely satisfactory.  However, I am conscious of the difficulties the Cowells have experienced in getting to the present point.  I do not propose to refuse the present motion by reason of any delay, or apparent delay, on their part in making the application.

CONSIDERATION OF GROUNDS

31                  In the document entitled “Amended Proposed Grounds to Seek Further Review of Decision of 23 March 1998” of HREOC, there are seven grounds.  I shall deal with them in sequence as they are listed.

32                  The first is “indirect discrimination”.  It is expressed in the following terms:

“The findings of the Tribunal were not dealt with in the cross review of this matter.  Despite the fact that irrelevant considerations had been taken into account.  The second respondents were prevented from presenting these facts.  French classes in 1995 were upstairs but not affected by a change of house.  A computer was available in the library in 1995 not in 1994 when the second respondent was actually taking compulsory computer lessons.  The inside stairs were as difficult access as the outside stairs.”

33                  In very brief terms, the allegation which the Commission was required to address was whether the School had imposed a condition that Ms F Cowell regularly attend classes which were located upstairs.  She had been first allocated a home house which was located upstairs, before any question as to her capacity to use the stairs at the School to access the upstairs home rooms had been raised.  In March 1994, the Commission found, her home group teacher had been alerted to the fact that she was having difficulties with the stairs.  The Commission accepted that her home group teacher had then suggested that Ms F Cowell be transferred to another of the six home houses with home rooms on a ground floor section of the School campus, but that offer was rejected by Ms M Cowell.  A similar offer was made in April 1994 but again rejected.  The Commission did not accept the evidence given by Ms M Cowell about those conversations.  At a formal meeting between the head of the middle School and Ms M Cowell early in term two of 1994, a further suggestion of a change of house was put but rejected, and later that year the acting head of that house (whilst the house master was on leave) again put that proposal but it was rejected.  The head of the middle School put that proposal further in early 1995.

34                  The Commission further found that the subject of computing was taught only upstairs during 1994, and that normal access to the computing class was by external stairs which were not suitable to be used by Ms F Cowell whilst she was on crutches during that year.  The School offered her the use of an internal stairway, which it found could be used by her even when on crutches.  I noted in the reasons for judgment of 11 November 1998:

“[Ms F Cowell’s] evidence was (as the Commission found) that she was not worried about computing, and that a computer was available to her in the library [downstairs].  The Commission declined to make any discrete finding adverse to the School in relation to computing classes.  No issue based on that particular aspect is raised on this application.”

35                  Its findings of fact led the Commission to conclude that the School did not require Ms F Cowell to access the upstairs classrooms in order to avail herself of the educational services offered by the School.  There was no requirement or condition imposed by the School upon her with which persons without her disability would be more able to comply:  see s 6 of the DD Act.  It did not therefore engage in indirect discrimination.

36                  In the detailed contentions of the Cowells on this application, they assert that the use of the internal staircase was not offered to Ms F Cowell, contrary to the Commission’s finding, and that she was unable to access the computing class upstairs because she could not negotiate the internal staircase.  It is then contended, in terms of s 5(1)(e) and s 5(2)(b) of the ADJR Act that the Commission failed to take into account relevant considerations, namely that the inside stairs were also unsuitable for use by Ms F Cowell, and that a computer was not made available to her by the School in the library, also contrary to the Commission’s finding.  It is also asserted that the Commission did not make a finding on Ms F Cowell’s claim that she could not access French classes during 1995 and so failed to adjudicate on a matter which it was required to determine.  It is further asserted that Ms F Cowell was unable to attend history and geography classes in 1994 and 1995 because they were conducted upstairs, although there was evidence from the School that alternate downstairs classes were offered to her.  Those matters are dealt with principally, but not exclusively, in the affidavits of the Cowells of 4 February 2002 and in the Amended Statement of Claim.

37                  I do not consider that any of those matters could entitle the Court to re-open the case decided on 11 November 1998, or could lead to that judgment being set aside on the grounds of fraud or any other ground upon which the power to set aside the judgment might be exercised.  They are attempts to relitigate, in some respects, the questions of fact which the Commission addressed.  It decided that internal stairs were suitable for and available to Ms F Cowell.  It accepted that Ms F Cowell had the opportunity of using the computer in the library during 1994 in lieu of attending computer lessons.  The issue as to her access to French classes in 1995 was not specifically raised in the hearing the subject of the decision on 11 November 1998.  The issue concerning access to history and geography classes was also not raised at that time.

38                  As I observed in the judgment of 11 November 1998, it was contended on the part of the Cowells that the offer of the School to change home groups to a downstairs home group itself constituted indirect discrimination contrary to the Act.  I concluded that the Commission’s approach to that offer or those offers, which it found to have occurred, involved it regarding the offer as reasonable in the circumstances of the case and one with which Ms F Cowell was able to comply, thus bringing the matter outside both subs 6(b) and (c) of the DD Act.  Ms F Cowell’s attitude in declining those offers was taken into account by the Commission in reaching its view.  There was nothing to indicate that the educational facilities offered in a downstairs home group were different from, or inferior to, those offered to the home group located upstairs to which Ms F Cowell was first allocated.

39                  At the hearing before me, apart from those arguments, the Cowells complained only of two particular findings of the Commission relating to its conclusion that there was no indirect discrimination.  The first related to the finding that the School had offered Ms F Cowell transfer to a downstairs home group on 17 March 1994, and the second to the finding that the School had not said that Ms F Cowell would be better off in another school.  No further attack on the other findings of fact of the Commission relating to indirect discrimination was made, and no submission that it should have made additional findings of fact was made.

40                  The Cowells now assert that those two matters were not raised before the Court on legal advice.  They complain they were not “allowed” to fully exercise their rights of “appeal”.  They may be under a misapprehension about the nature of the application to the Court from the Commission’s decision.  It was not an appeal in which the Cowells were entitled to argue any matter of fact raised before the Commission.  It was an application for judicial review of the Commission’s decision under the ADJR Act.  The available grounds of review are circumscribed.  They are set out in s 5 of the ADJR Act.  The review is not one as to the merits of the decision, but rather whether there has been in some way a failure to make a decision in accordance with law in all the circumstances:  see e.g. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1980) 162 CLR 24 at 39.  In Borkovic v Minister for Immigration & Ethnic Affairs (1981) 39 ALR 186, Fox J at 188 said:

“It is plain that under the Act in question this court does not have power to make a decision on the merits of the factual position for itself.  It is plain that it is not invited or empowered under the Act to consider the facts for itself for the purpose of forming and declaring its own view thereon.  Of course, in order to apply some of the provisions of the Act it is necessary to examine the facts quite closely, but this is not for the purpose of the court arriving at its own decision; rather is it to see whether the case comes within one of the specific provisions of the relevant sections of the Act.”

41                  The advice which the Cowells received may have been entirely appropriate.  The issue as to the quality of the advice has not been fully ventilated, and I make no judgment about it.  But, whatever the reason, the fact that certain matters raised before the Commission were not raised in the application before the Court, apparently based on legal advice, does not provide any reason why the Court should either allow the Cowells to re-open their case before the Court or should set aside its judgment.  The circumstances, assuming them to be accurately stated by the Cowells, do not come within those which the authorities referred to above contemplate.  I have not considered whether, if the Court were to address these contentions of the Cowells, they would have any real prospect of success.  I do not need to do so for the reasons given.  I note, however the interests of justice could only be served by setting aside the judgment by either of the means identified if, in addition, there were some real prospect of these contentions succeeding.

42                  I note that the Cowells have filed further submissions on 21 February 2002 providing some authorities which are said to provide the examples of cases in which indirect discrimination was found to have existed.  I do not think those cases take their claim further.  If it were contended that, in the judgment of 11 November 1998, there were errors of law as to what constituted indirect discrimination, the appropriate course would have been to appeal.  No appeal was instituted.

43                  Ground two refers to “access to education” and reads as follows:

“The Tribunal failed to make a finding with regard to failure to provide access.  This failure to make a decision prevented the facts from being presented in our cross appeal so that Justice Mansfield would realize that the applicant had a reason for not wanting the second respondent to remain at the School.”

44                  The written contentions assert that the School failed to make itself readily accessible to Ms F Cowell with her disability.  Reference is made to additions to School buildings planned in 1993, and commenced in February 1995, after the Cowells informed the School of Ms F Cowell’s worsening physical condition in May 1994.  It is contended that the School responded that it “could not be of assistance to Fleur” and advised the Cowells to look for another School.  Reference is made to evidence before the Commission to that effect.  It is also asserted that Ms M Cowell in June 1994 told the School that it should install a lift as part of its building program, but the School did not do so.  She was told that the cost of the lift was prohibitive relative to the cost of the building project, but she disputes that.  It is therefore claimed that the Commission failed to make a finding under s 23(1)(c) and s 22(2)(a) of the DD Act, and therefore failed to take into account a relevant consideration and failed to adjudicate on a complaint before it.

45                  As to the first matter, the issue as to whether the head of the middle School had suggested in 1994 that Ms F Cowell would be better off placed in another School was determined by the Commission.  It concluded that Ms M Cowell had misunderstood the comments made in the conversation giving rise to her complaint.  The conversation included the topic of providing a lift to help Ms F Cowell gain access to upstairs classrooms.  The Commission accepted the evidence of the head of the middle school that he said he did not know of any school in the neighbourhood which provided lifts, but that if Ms Cowell was able to find one then she may wish to consider transferring her daughter to that school.  The Commission accepted that evidence.  It rejected the suggestion that he had said that Ms F Cowell would be “kicked out”, or that it was better for her to leave the School.  One argument advanced at the hearing before the Court was that the Commission, in reaching that view, had failed to accord the Cowells procedural fairness.  I rejected that contention.  If I was wrong in doing so, the appropriate course was to appeal.  There was no appeal.

46                  The position is that the Commission made a finding of fact, challenged on the hearing before the Court but upheld, and not the subject of an appeal.  Nothing has been shown in the light of the authorities referred to above to warrant the re-opening of the hearing, or upon which the judgment of 11 November 1998 could be set aside.  In my view, the Cowells simply wish to re-argue a question of fact decided against them, even if they wished to present fresh evidence in relation to it.  As I understand the affidavits in respect of this aspect, however, it is largely an attempt to recite and rehearse the same evidence which was given to the Commission.

47                  It was not argued before the Commission that it was required to make a finding under s 23(1)(c) of the DD Act.  There could be no basis upon which, on an application under the ADJR Act, the Commission could therefore be found to have erred in a reviewable way by not having done so. Ms M Cowell referred to the Notice of Cross-Review dated 5 May 1998 as identifying that issue.  I do not think it does.  More importantly, the Commission’s reasons for its decision make it clear that a contravention of s 23(1)(c) of the DD Act was not asserted at its hearing.

48                  The Further Submissions refer to certain cases concerning denial of access.  As previously, I think they are but examples and do not advance the present application.  If it were argued that, by reason of those cases, my decision on 11 November 1998 was wrong in law or in fact, the appropriate course was to appeal.  No appeal has been instituted.

49                  Ground 3 of the grounds of further review is entitled “harassment”.

50                  It reads:

“The tribunal erred in relation to the complaint of harassment by [a teacher].  [The teacher] stated she could not remember what she said to the second respondent.  Irrelevant considerations were taken into account.”

51                  The notice of contentions relates to an occasion on 1 March 1996, when the science classroom teacher allegedly made some insensitive comments to Ms F Cowell about her disability and her capacity to study the subject given the time she had been absent.  It is then contended that the Commission erred in law in finding in respect of that communication that there was no harassment by failing to take into account relevant considerations:  s 5(1)(e) and s 5(2)(b) of the ADJR Act.  Ms F Cowell’s affidavit recites the facts, apparently consistently with those given to the Commission.

52                  As I recorded in the reasons for judgment of 11 November 1998, the relevant teacher gave evidence.  The Commission concluded that Ms F Cowell had misunderstood what had been said to her by that teacher, and her complaint in that regard was not made out.  The Commission’s conclusion was not the subject of challenge on the application before the Court.  Consequently, the present application seeks to raise an argument which was not argued on the initial application.  The reasons why that matter was not argued on the initial application do not emerge.  Although the affidavits complain of the nature of legal advice given to the Cowells prior to and during the hearing before the Court, there is no specific assertion concerning those conversations or why that particular matter was not then raised.  In my view, the circumstances as now asserted by affidavit and in contentions plainly could not entitle the Cowells to have the application before the Court re-opened following the judgment or to have the decision set aside.  The decision did not deal with the issue because it was not put before the Court at all.  There is no application separately for an extension of time to seek judicial review of the decision of the Commission in that limited respect.  Even if there were, leave would not now be given in light of the lapse of time, and because the material indicates that the Cowells in reality wish to re-ventilate evidence upon which the Commission made a decision on a matter of fact.  They have identified no basis upon which the Commission’s decision in this regard might be set aside under s 5 of the ADJR Act.

53                  The fourth ground of review is described as “failure to provide goods and services”.  The ground refers briefly to the Commission’s alleged failure to make any finding under s 24 of the DD Act.  Thus, the contentions allege a failure to take into account a relevant consideration contrary to s 5(1)(e) and s 5(2)(b) of the ADJR Act and so a failure to adjudicate on a complaint before the Tribunal.  The short answer is that a contravention of s 24 of the DD Act was not alleged in the original complaint to the Commission.  Consequently, it was not dealt with by the Commission.  In those circumstances, there can be no basis upon which it is now appropriate to re-open the Court’s decision to enable the Cowells to ventilate a contravention of a provision upon which the Commission was not called upon to adjudicate.

54                  I do not need to decide whether, as the School contends, the facts as alleged could not enliven ss 23 or 24 of the DD Act in any event because the complaint of the Cowells was directed to ss 6 and 22 of the DD Act, or because s 22 is a complete code in respect of discrimination on the ground of disability by an educational authority.

55                  The fifth ground of review is described as “failure to provide a fair hearing”.  The particular complaints are as follows:

“There were breaches of the rules of natural justice in that the Tribunal failed to follow procedural guidelines as set by the Human Rights & Equal Opportunity Commission for a hearing.  The second respondents were unaware of the rules of natural justice at this time and at the time of the cross-review.  This matter is now raised as the second respondents realize they did not receive a fair hearing.  The second respondents were not made aware of the issues which the applicants intended to introduce (ie the note of the 27^th February, 1996) and given the correct opportunity to reply and produce evidence related to these issues.”

56                  The detailed nature of that allegation appears from the notice of contentions.  It is claimed that the Commission provided the Cowells with insufficient opportunity to present their case.  After referring to practice notes of the Commission and its guide to parties, the Cowells complained that there “was not a balanced representation between parties” as recommended by the Commission because the School was represented by a Queens Counsel over the protest of the respondents.  The second aspect of that claim is that, despite directions about the exchange of witness statements, the School did not provide all witness statements prior to the witnesses giving evidence and so the Cowells had to confront oral evidence without a full opportunity to consider it.  Ms M Cowell complained of that process during the hearing, but the Commission permitted the hearing to proceed in that way.  Consequently, it is alleged that the Commission failed to ensure that procedures required by law to be observed in connection with the making of the decision were not observed, so as to enliven the ground of review available under s 5(1)(b) [sic] of the ADJR Act, and that it breached the rules of natural justice in connection with the making of the decision so as to contravene s 5(1)(a) [sic] of the ADJR Act.

57                  It was not a ground of their cross-application to the Court under the ADJR Act that the Commission had failed to accord them natural justice in the manner now presented.  The issues before the Court on the initial hearing were twofold only.  There was a specific complaint about the course of evidence concerning the conversation with a teacher on 17 March 1994 supported by a note of that conversation prepared by the teacher, which went to one of the complaints of harassment.  The other complaint of procedural unfairness concerned the alleged absence of an opportunity to address the evidence of a conversation with the head of the middle school in which, Ms M Cowell claimed, she had been told Ms F Cowell would be better off at another school.

58                  The issue concerning a note said by the teacher to have been recorded of the conversation dated 17 March 1994 was fully aired before the Commission.  The note concerned a conversation about an offer of re-location to a downstairs house.  It was contended that Ms M Cowell was denied the opportunity to put a material point about the unreliability of the note, because Commission staff had whited out a section of it.  As I observed in my reasons for decision, Ms M Cowell submitted to the Commission that the teacher’s evidence of the conversation may be unreliable and that the note itself was not a note of the conversation which the teacher had made.

59                  The Commission was obliged to comply with s 83 of the Act.  Section 83(1)(b) obliged it to give the Cowells a reasonable opportunity to call or give evidence and to examine and cross-examine witnesses and to make submissions.  There was no dispute that the rules of procedural fairness applied to the decision-making processes of the Commission in the circumstances.  I observed in my reasons for decision that the Commission has considerable scope to conduct its proceedings in an informal way, and is not bound by the rules of evidence:  s 98 of the DD Act.  In this instance, it proceeded by way of evidence by examination, cross-examination and re-examination.  I concluded on the particular facts that it had not breached s 83 by failing to give a reasonable opportunity to the Cowells to cross-examine or to make submissions.  I also concluded that there had been no breach of the rules of procedural fairness in the way the Commission had dealt with the evidence of the head of the middle school about the other conversation referred to.  In my view, if the Cowells had wished to complain of those rulings, the appropriate course was to appeal.  They have not done so.  Subject to consideration of the specific claims based upon fresh evidence or fraud, nothing has been shown to warrant the present application, however understood, being granted.

60                  It is apparent from the Commission’s reasons and from the course of its hearing that it was sensitive to the disadvantage which Ms M Cowell on behalf of the Cowells might experience in conducting the hearing.  The Commission took steps to minimise the disadvantage as much as it could, consistent with its obligation to be impartial.  The Cowells had the opportunity of hearing the evidence of witnesses called by the School as it unfolded.  The Commission offered the Cowells an adjournment of the hearing from time to time.  It required the School to file written submissions in advance of the oral submissions, and required the School to present its oral submissions first.  The so called imbalance of representation, and the process (which apparently worked imperfectly) of exchanging statements of proposed evidence in advance of oral evidence, was not specifically the subject of complaint on the application to the Court.  In my judgment, it is inappropriate that the Cowells now be permitted to raise those issues.  They do not justify the re-opening of the case or the institution of fresh proceedings, in the light of the authorities referred to above.

61                  The sixth ground of review is described as “Bias”.  The proposed grounds of review describe that complaint in the following way:

“A further breach of natural justice was the conflict of interest of the hearing.  Commissioner.  The Commissioner has a past professional association with the applicant.  His judgement was biased towards the School.  The Commissioner accepted the applicants’ version of the second respondents medical state over that of the second respondents, her father and doctors.  This matter was not dealt with in the cross-review as the second respondents legal advisors did not give advice.”

62                  It is explained in the notice of contentions that the Commission as constituted was a past president of the Uniting Church of Australia, and that the School had an affiliation with the Uniting Church so that the Commission as constituted had a significant interest in the welfare of the School.  It is noted that the Cowells were informed by the Commission that the Commissioner was on the board of a “sister School” of the School interstate.  It is complained that the Commission failed to disclose the affiliation with the Uniting Church so as to contravene s 42 of the Human Rights and Equal Opportunity Act 1986 (Cth).  Section 42 provides:

“42.(1)            A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered by the Commission shall, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Commission.

(2)        A disclosure under subsection (1) shall be recorded in the minutes of the meeting of the Commission and the member shall not:

(a)   be present during any deliberation of the Commission with respect to that matter; or

(b)   take part in any decision of the Commission with respect to that matter.”

63                  The conflict of interest alleged by the second respondents is not accommodated by that provision.  The Cowells do not contend that the Commission as constituted had a direct or indirect pecuniary interest in the outcome of the proceedings before it.  It is therefore not necessary to determine what effect a conflict of interest of a pecuniary nature, even if made out, would have on the outcome of the present application.

64                  The complaint is more properly viewed as a complaint that asserted the Commission as constituted bore a social allegiance or affection toward the School by reason of its asserted association with the Uniting Church, and that that allegiance would lead a fair minded observer to conclude that the Commission would approach the Cowells’ complaints with a mind closed to persuasion.

65                  The Cowells also claim to have a reasonable suspicion of bias by reason of the Commission’s allegedly failing to accept the evidence of Ms M Cowell in significant respects to that of witnesses called by the School, ignoring the evidence of expert medical witnesses, and allowing the hearing to proceed in a way that favoured the School.  There is therefore said to be a breach of the principles of natural justice:  s 5(1)(a) ADJR.

66                  The affidavit of Ms M Cowell asserts that, prior to the completion of the hearing before the Commission, she informed her then solicitors that the Commission as then constituted:

“Had a telephone conversation with a member of Disability Action regarding our case.  The person was kind to me and had helped me.  We discussed sensitive details of our case.  He advised I should use this information at the hearing, but I did not.  He would not have known that I did not present this information at the hearing.  He told me he spoke with the Commissioner just after the hearing, well before the judgment.”

She deposes to her then solicitor advising her that it would be difficult to succeed in making a complaint against the Commissioner, and she decided not to make any trouble for the informant.  The matter was not further pursued.  Ms M Cowell further deposes that the Commission, at an inspection at the School, informally observed of knowing a person whose name was on a commemoration plaque.  She raised with her then solicitors whether the Commission had an inappropriate connection with the School but was advised that the incident gave no reason to pursue the matter further.

67                  Part of the information said to give rise to the appearance of bias was disclosed to the Cowells.  Ms M Cowell deposes to being informed by her solicitors at the time that the Commission as then constituted had informed her then solicitors of its connections with the Uniting Church.  At the time, she had no objections to him conducting the hearing despite that information.  She now claims not to have fully understood those connections.  The connections are said to be through the Commission as constituted being a former national president of the Uniting Church, and the School being under the auspices of the Uniting Church and the Baptist Church.  She deposes to having thought that the background of the Commission as constituted was Anglican.

68                  The fact is the Commission as constituted disclosed an association with the Uniting Church, clearly in the context that the School was or may have an association with the Uniting Church which would warrant consideration of whether the Commission as constituted should hear the matter and Ms Cowell at the time had no objection.  It is now too late to raise any such objection.  Those matters were discussed with her legal advisers prior to or at the time of the application before the Court.  She also had been told through her informant at Disability Action of some other perceived role of the Commission as constituted which might have led to the appearance of bias on his part.  She instructed her solicitors that she did not wish to get the person from Disability Action into any bother.  She also complains that she felt coerced into not complaining.  Having elected not to complain of ostensible bias on the part of the Commission as constituted during the Commission hearing, the Cowells would not normally be entitled to raise those matters on review to the Court.  The fact is that they did not do so.  They now wish to do so belatedly.  The claim is made that:

“The Commissioner’s conflict of interest in the matter prevailed over his judgment.  This bias towards the School has denied the second respondents a fair hearing.  The evidence of the School was preferred over that of the second respondents despite the facts.”

The bias is said to have been demonstrated by the Commission permitting the School to have legal representation, and in failing to insist that witnesses for the School were not absent during the evidence of other witnesses (although Mrs M Cowell acknowledges that the Commission asked her whether she wished to have the hearing cleared of such people).

69                  The School claims that any alleged breach of the rules of procedural fairness was the subject of cross-review and dealt with by the Court.  No new material is said to have been identified to warrant the present application.  As to bias, the School says that the Cowells have not identified any evidence to be adduced on any rehearing of the review to support the allegation of bias or conflict of interest on the part of the Commission as constituted.  The School denies that the Commission as constituted had a connection with the School, that the School has “a sister School” in Perth, or that the School was under the auspices of the Uniting Church and the Baptist Church.  It asserts that the School was formed from an amalgamation of Kings College (established by the Baptist and Congregational Churches) and Girton Girls School (a non-denominational Christian School).  The Congregational Church subsequently became part of the Uniting Church.  Pursuant to the constitution of the School, the only current roles of the Uniting Church are to elect a trustee to a body of eight trustees which then elects four members of the School council comprising 12 members, and to give directions as to the disposition of one quarter of any surplus assets upon the winding up of the School.

70                  Even assuming the facts asserted by the Cowells are correct, it is not clearly apparent that the asserted connections between the Commission as constituted and the School are such, or might be such, as to lead a fair minded observer to reasonably believe that the Commission as constituted might decide the complaint other than on its legal and factual merits (see per Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 648; [2000] HCA 63 at [8].  I do not think it is self-evident that a fair minded observer might reasonably apprehend that the Commission as constituted might not have brought an impartial mind to the resolution of the issues:  see e.g. R v Watson; Ex parte Armstrong (1976) 136 CLR 248.

71                  In this matter, the fact that the School disputes the facts asserted by the Cowells illustrates the desirability of concerns on the part of a party to any perceived connections between a party and a decision-maker, if known, being raised at the time.  The true facts might be readily ascertained, and their implications considered.  The failure of the Cowells to do so may be taken as a waiver of the right subsequently to object:  Dickason v Edwards (1910) 10 CLR 243; Maloney v New South Wales National Coursing Association Ltd [1978] 1 NSWLR 161; Vakauta v Kelly (1989) 167 CLR 568 at 572; even though they were unrepresented:  Preston v Carmody (1993) 44 FCR 1.  Whether there was such a waiver would depend on whether the Cowells had full knowledge of the relevant facts:  Najjar v Haines (1999) 25 NSWLR 224.  But there is no doubt that they chose, apparently on legal advice, not to raise apprehended bias as a ground of judicial review of the Commission’s decision before the Court when the matters of which they now complain were fully known to them.

72                  In those circumstances, I see no warrant for permitting them to re-open their application under the ADJR Act before the Court to argue what they might previously have argued but chose not to argue.  As I have said, their concerns, even if raised before the Commission as constituted, may not have led the Commission to reconstitute to hear their complaints. This is certainly not one of those exceptional cases to which the authorities discussed above refer.  Indeed, ultimately, it might be the case that the Cowells’ complaint is prompted by the outcome of the hearing before the Commission having regard to the passage set out in [63] above, rather than from facts giving rise to a concern about impartiality which were learned only after the Commission’s decision.

73                  The seventh ground of review is entitled “Fraudulent documents”.  There are three allegedly fraudulent documents identified in the proposed grounds of review as follows:

“1)      A note dated the 17^th March 1994 was accepted as evidence despite a denial of this conversation by the second respondent.

New evidence has been found that was not available at the time of the hearing proves this note was manufactured for the hearing.

2)                  A teacher said she re-wrote evidence for the QC.  The second note differs from the first but was accepted by the Tribunal as one note.

Expert medical advice was ignored and that of the teacher accepted.

3)         The Principal of the Middle School produced a computer list which differed from the 1995 diary of the second respondent.  The second respondent stated she worked all year from her diary and had never seen this list before, or offered these classes.  Her parents had not seen this list or been offered these classes for the second respondent.”

74                  The issue as to the note of the conversation on 17 March 1994 concerned the offer of a change of house to a downstairs classroom.  The teacher concerned gave evidence of the conversation, refreshing her memory by reference to a photocopy of a page of a note of the conversation.  Ms M Cowell disputed there was such a conversation.  Her evidence before the Commission indicates that she did not recall any such conversation, but had it occurred she would have refused on behalf of Ms F Cowell any transfer to a downstairs house.  Ms F Cowell was not a party to the conversation but recalls her mother telling her that the teacher “would hate to lose one of her chickens”, although it is not clear whether she was told that following the conversation in March 1994 or a little later.  The Commission sought the original note, and it was produced and the directly relevant section made available to the Cowells.  The Cowells made a submission that there was no such conversation, and that the note of 17 March 1994 should be viewed “with suspicion”.  I concluded on 11 November 1998 that the Commission had not failed to comply with s 83 of the DD Act in relation to the issue, including in relation to the note of 17 March 1994.  No appeal was instituted from that decision.  It is now asserted that, subsequent to the Court’s decision, Ms F Cowell’s school diary has since been found in March 2000 and it proves that the teacher’s note is “fraudulent”.  Ms F Cowell’s diary shows her as having attended a doctor on 17 March 1994.  Thus, it is contended, the note was manufactured to deceive the Court, making it appear that the School had offered Ms F Cowell a change of house much earlier than it had done so.

75                  I do not consider that the additional material identified by the Cowells demonstrates clearly that the note of 17 March 1994 is a fabricated record.  The diary of Ms F Cowell and the other material they have now assembled tends to show that she was at school on 17 March 1994 and left school about 11.30 am to attend a routine medical examination.  It does not show directly that the teacher fabricated her note to the effect that Ms F Cowell had leg pain causing absenteeism and that a change of house was discussed on that day.  The “fresh” information may have provided a further basis for challenging the reliability of the teacher’s evidence, but her evidence could sit conformably with the fresh material.  There may be other explanations.  The conversation may have been either later or earlier in the day, or its date may have been mistaken.

76                  In addition, I do not consider that the additional evidence, if adduced before the Commission, would probably have produced an opposite result on its inquiry.  Even assuming that the Commission were not satisfied that the teacher had reliably reported such a conversation, it would have altered the factual scenario only in a temporal sense, and it would have done so in the context (as the Cowells now assert) that Ms F Cowell at 17 March 1994 was not having such difficulty as required the School to consider the possibility of a transfer to a downstairs home group.  The issue is only of temporal significance because there were offers of a change of home group to a downstairs home group in April 1994 and early in term two of 1994 and subsequently.

77                  In my judgment, the additional information (assuming that it could not have been procured by reasonable diligence by the Cowells for the Commission’s hearing) does not show with any persuasiveness that the teacher’s note of 17 March 1994 was fabricated for the purpose of misleading the Commission, or that it would probably have affected the outcome of the Commission’s inquiry, including on the issue of indirect discrimination.

78                  The second allegedly fraudulent document is a note of a teacher of 27 February 1996.  It recorded a conversation with Ms F Cowell’s father about a deterioration in Ms F Cowell’s physical condition.  The Cowells contend that its substance was an invention, and that it is not consistent with medical information at the time.  The teacher gave evidence that the note had been re-written from an abbreviated record of the conversation.  Those matters were put before the Commission.  The material to which the Cowells refer is not recently discovered.  In addition, it is not material which persuasively shows that the teacher’s note of the conversation on 26 February 1996 was a fraudulent document, in the sense of showing that the teacher fabricated the document to support evidence which was not true.

79                  I also do not think that the evidence to which the Cowells now refer, even if not available at the hearing before the Commission, would reasonably be expected to have affected the outcome of the Commissioner’s inquiry, and certainly is not evidence which is likely to have produced an opposite result.  It is part of the Cowells’ claim, in this regard, that Ms F Cowell (who returned to the School at the end of February 1996) left the School at the end of term one because of the School’s treatment of her, rather than because of her medical condition.  Ms F Cowell’s father did not, on the present motion, give any evidence to contradict the teacher’s version of the conversation.  The evidence on which the Cowells now rely does not demonstrate that the conversation to which the note refers did not take place, at least in substance as the teacher said.  More significantly, the conversation was taken into account by the Commission in concluding that the School had contravened s 5 of the DD Act.  It is not clear to me, in that circumstance, how it is now said that the outcome of this aspect of the complaint would have been different if no such conversation had occurred.

80                  Finally on this aspect of the claims, the decision of 11 November 1998 set aside that part of the Commission’s decision which determined that the School had contravened s 5 of the DD Act.  In consequence, the apportionment decision of the Commission was also set aside.  The issue as to whether the School had directly discriminated against Ms F Cowell was remitted to the Commission for reconsideration.  The Cowells, therefore, have had the opportunity of re-ventilating the issue of what, if any, conversation took place on 27 February 1996.  There would be no real point, in those circumstances, in permitting them to do so in relation to the initial Commission inquiry.  Even if on the present motion they had otherwise made out a case that they should have been permitted to do so, I would not have granted their application in that respect for that reason.

81                  The third allegedly fraudulent document concerns the computer printout of class timetables.  The document indicated the availability to Ms F Cowell of history and geography classes downstairs.  Ms F Cowell said she was not offered those classes, and studied history and geography alone in the library downstairs at the School.  The Cowells claim the document is a fabrication.  They had not seen it prior to its presentation in evidence to the Commission.

82                  The difficulty confronting the Cowells in their present application concerning this document is that the issue as to the availability of classes to Ms F Cowell downstairs, and including the reliability of the evidence of the teacher concerned and the computer records, was aired before the Commission.  There were features of it which were the subject of cross-examination at the hearing before the Commission.  The only new material is the diary of Ms F Cowell, rediscovered in March 2000.  Its contents are not of such significance in relation to the accuracy of the computer printout as to lead me to conclude that the computer printout was, or may have been, fabricated for the purpose of deceiving the Commission.  There are explanations about how the contents of those two documents might intersect which involve no fraudulent conduct on the part of the teacher whose record it was.  Nor does the diary lead me to conclude that the outcome of the Commissioner’s inquiry might well have been different had it been available at the time.  It would be but a piece of evidence which may, or perhaps would, have been used to contradict the evidence of the teacher concerned in some respects.  Whether it would have lead to the Commission rejecting the teacher’s evidence as unreliable is no more than speculation, as the assessment of his reliability was made not only upon the basis of the computer printout.

83                  I have dealt with the claims about those three documents on the assumption that, if the Cowells could demonstrate by the re-acquisition of the diary of Ms F Cowell or in some other way that the Commission’s decision was procured by fraud on the part of the School, and that the case fell within the principles discussed above, it would be within the power of the Court on this motion to re-open the ADJR application or to set aside the Court’s judgment for the purpose somehow of re-enlivening the Court’s power to hear the ADJR application, presumably invoking s 5(1)(g) of the ADJR Act.  It is not self-evident that the Court could do so if the basis of the claim were the ascertaining of fresh evidence which did not go so far as to demonstrate the Commission’s decision was affected by fraud.  I also do not need to address whether s 5(1)(g) refers only to fraud on the part of the administrative decision maker.

conclusion

84                  In my judgment, the Cowells have not made out any basis upon which the Court should permit them to reopen their application under the ADJR Act in respect of the decision of the Commission given on 23 March 1998, assuming in the circumstances that the Court has jurisdiction to do so.  The case is not one of rare and exceptional cases where the interests of justice require that course of action in respect of a judgment which has been entered in accordance with the Rules.

85                  I also consider that, if the motion be treated as a fresh action to set aside the decision of the Commission on the ground that it was procured by fraud, the Cowells have not made out grounds upon which any such order may be made.  I did not understand them to be alleging that the decision of the Court given on 11 November 1998 was itself procured by fraud on the part of the School.  There is no material upon which they could make that out.  Their motion might also be taken as a fresh action to set aside the judgment of the Court of 11 November 1998 for the purpose of arguing on the application then before the Court that the decision of the Commission given on 23 March 1998 should be generally set aside.  The basis of that application is the discovery in March 2000 of the diary of Ms F Cowell.  For the reasons given, I do not consider that grounds have been made out upon which that application could succeed.

86                  I accordingly dismiss the application of the Cowells made by notice of motion dated 16 August 2001.

 

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

 

 

Associate:

 

Dated:              15 August 2002

 

 

Counsel for the Applicant:	Ms L Powell QC
Solicitor for the Applicant:	Mellor Olsson
Counsel for the First Respondent:	No appearance.
Counsel for the Second Respondent:	The Second Respondent appeared in person.
Date of Hearing:	6 February 2002
Date of Final Written Submissions:	26 March 2002
Date of Judgment:	19 August 2002