Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 (13 January 2006)

Last Updated: 24 January 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13


PARTIES: APPLICANT
Wayne Hay
RESPONDENT
State of New South Wales (New South Wales Police Service)



FILE NUMBERS: 041085

HEARING DATES: 12/09/05

SUBMISSIONS CLOSED: 12/09/2005



DECISION DATE: 13/01/2006

BEFORE: Britton A - Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Harding v Vice Chancellor, University of NSW [2003] NSWADT 74
Ormonde and New South Wales Department of Environment and Conservation [2005] NSWIRComm 286
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Salama v Qantas Airways Ltd [2002] NSWADT 119
Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4
Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221
Tannock v State of New South Wales [1999] NSWADT 73

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Preliminary matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
E Brus, barrister

ORDERS: 1. The application is dismissed
2. Matter to be set down for hearing at dates to be fixed by the Registrar.


Reasons for Decision:

REASONS FOR DECISION

1 Wayne Hay, claims that his former employer, the Commissioner of Police, NSW, discriminated against him on the grounds of disability and lodged a complaint with the President of the Anti-Discrimination Board (the President). The President in turn referred those complaints to this Tribunal. The Respondent now moves under s 111(1) of the Anti-Discrimination Act 1977 (the Act) to have Mr Hay’s complaints dismissed.

Background

2 Mr Hay commenced employment with the NSW Police Service in 1998 and was medically retired in 2003. In 1994 he injured his back at work and subsequently made a workers compensation claim. Liability was accepted.

3 Throughout the period May 2002 to February 2003 Mr Hay lodged nine complaints with the President. In those complaints he made various allegations against his former employer spanning the period 1994 to 2003. On 11 May 2004 the President decided not to exercise his discretion under s 88(4) of the Act to accept that part of Mr Hay’s complaint that related to events that predated the six-month statutory time limit and determined that the period of the complaints was limited to 29 November 2001 to 14 February 2003.

4 At a case conference held on 5 July 2004 the Tribunal directed Mr Hay to provide a statement setting out, among other things, particulars of the incidents/ treatment on which he sought to rely and details of relief sought. On 3 November 2004 Mr Hay filed a 17-page document, which set out in narrative form details of the alleged mistreatment by his former employer from 1994. On 8 December 2004 the Respondent wrote to Mr Hay and asserted that this document contained material that was not part of the complaint before the Tribunal and requested that he provided an amended document. Mr Hay refused and argued that this was a tactical ploy designed to frustrate the determination of his complaint.

5 At the request of the Respondent a second case conference was held on 9 February 2005 where further directions were made. These included that Mr Hay advise which, if any, of the alleged incidents constitute "indirect discrimination" and identify those parts of his complaint which fell within time, as determined by the President.

6 On 18 March 2005 Mr Hay filed a 23-page document setting out 33 alleged incidents (the amended statement). Incidents 1 to 32 apparently relate to the events which occurred before November 2001.

Submissions

7 The Respondent contends that the complaint ought to be struck out primarily because Mr Hay has repeatedly failed to comply with directions of the Tribunal in particular those requiring him to limit the material he relies on to the period in dispute. It is argued that if the complaint proceeds in its current form the Respondent will be obliged to put on evidence about alleged incidents, which fall outside the scope of the complaint, an expensive and time-consuming exercise. To do otherwise would allow adverse material against the Respondent to stand unanswered.

8 In addition it is asserted that Mr Hay has failed to particularise his complaint so as to identify which incidents are alleged breaches of the Act or what sections of the Act he relies upon. At its highest, it is argued the material on which Mr Hay relies represents an assertion that he has suffered a detriment. He is either unwilling or unable to articulate how that alleged detriment represents a contravention of the Act.

9 The Respondent relies on the decisions of Ormonde and New South Wales Department of Environment and Conservation [2005] NSWIRComm 286 and Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 as authority for the proposition that while the Tribunal is obliged to give a self-represented party as much assistance as it can it cannot run the case for him or her. It contends that despite Mr Hay being given the benefit of the President’s Report and the guidance of the Tribunal at two separate case conferences he has persisted in attempting to expand his claim to include allegations about events which fall outside the period of the complaint.

10 In the alternative the Respondent seeks an order that all evidence relating to the period outside the complaint be struck out.

Reasons

11 Section 111 gives the Tribunal the power to dismiss a complaint if it is satisfied that it is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained. As noted by the Appeal Panel in Crewdson v Niland & Ors a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet "if the complainant has demonstrated either an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed". The issue here is whether the circumstances of this case warrant an exercise of the power to summarily dismiss the complaint for the grounds advanced by the Respondent.

12 In a long line of decisions, the Equal Opportunity Division of the Tribunal has adopted the approach that the discretion to dismiss a complaint summarily should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 [at 34]; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119 at [8]- [10]; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74 at [24].)

13 The central complaint made by the Respondent is that Mr Hay has persisted in relying on alleged incidents which fall outside the period of the complaint. It contends that the Tribunal has made reasonable efforts to assist Mr Hay but his case is still not ready to proceed. It contends that if further assistance were provided the Tribunal would risk "stepping into the arena". Faced with a complainant who is either unwilling or unable to comply with its directions, it is argued, the Tribunal has little option but to dismiss the complaint.

14 An examination of the material filed by Mr Hay reveals it does suffer from many of the shortcomings about which the Respondent complains. It contains a mixture of submissions and evidence and the bulk of the evidence in the amended statement relates to incidents that occurred outside the period in dispute. In addition, contrary to the directions made on 9 February 2005, Mr Hay has failed to specify whether his complaint is cast as one of direct or indirect indiscrimination or both.

15 These observations are not intended as a criticism of Mr Hay. He, like many self-represented parties, has difficulty in distinguishing the relevant from the irrelevant and identifying the elements necessary to establish a complaint of discrimination.

16 It is useful at this point to set out the out the statutory framework in which the Tribunal operates when determining a complaint referred from the President. The Tribunal has broad power to determine its own procedures: s 73(1) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act). It is not bound by the rules of evidence and may inquire into, and inform itself on, any relevant matter in such manner as it thinks fit: s 73 (2). It 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: s73(3). It is required to ensure that all relevant material is disclosed so as to enable it to determine all of the relevant facts in issue in any proceedings: s 73(5)(b). It is required to take such measures as are "reasonably practicable" to ensure that the parties understand the nature of the assertions made in the proceedings and the legal implications of those assertions: s 73(4)(a). If requested to do so, it is to explain to the parties any aspect of the procedure of the Tribunal and to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings: s 73(4)(b).It may make any amendments to the proceedings that the it considers to be necessary in the interests of justice: s 81(1) and call any witnesses of its own motion in any proceedings: s 83(1). It may determine a matter without holding a hearing: s76. (See also Practice Note NO. 19 Equal Opportunity Division: Practice and Procedure)

17 Read together, these provisions make clear that Parliament did not intend that the Tribunal operate as a passive decision-maker. This however does not mean that the Tribunal is excused from the duty to "act judicially" or the obligation to comply with the rules of natural justice. It must be ever mindful of the need for judicial "detachment".

18 It seems to me that in the circumstances of this case it would be premature to dismiss Mr Hay’s complaint. While the material he has filed thus far does suffer from many of the shortcomings about which the Respondent complains it is apparent that this is not so much a case of a flagrant disregard for the Tribunal’s directions but one of a complainant who has genuine difficulties understanding what is required.

19 Nor at this stage do I think that the problem can be cured as the Respondent proposed, by simply drawing a line through those allegations said to fall outside the period in the complaint. While ultimately this might need to be considered, it could result in information necessary to place the substantive complaint in context being deleted. The material that is relevant to the ultimate determination of the complaints or allegations falling within the specified time may include material arising from outside of that time period.

20 While for the reasons as given I have decided not to dismiss the complaint or put a "red line" through the amended statement, I accept that the matter cannot proceed in its current form. In what is effectively a costs-free jurisdiction it would not be in the public interest to put the Respondent to the expense of answering all of Mr Hay’s allegations about the period, which predate the period of complaint. It may be, as Mr Hay apparently believes, that it is unfair that these allegations do not form part of his complaint. However, the Act makes clear that it is not within the Tribunal’s jurisdiction to determine those matters.

21 The matter will be listed for a further case conference at a date to be determined by the Registrar. For costs to be minimised and the matter to be determined as quickly as is practicable it is essential that both parties co-operate and assist in the preparation of this matter for hearing. To this end the Respondent is requested to file and serve a proposed statement of agreed facts 14 days before the conference. Mr Hay is requested to review the amended statement and clearly identify those incidents or events that fall within the period in issue i.e. 29 November 2001 to 14 February 2003 and to file and serve a copy of that a further amended statement no later than seven days before the conference. At that conference Mr Hay will be asked to clarify whether the complaint is cast as one of direct or indirect discrimination or both. It is recommended that Mr Hay make an appointment through the Registrar to see a duty solicitor from the Legal Aid Commission about this issue.

Orders

1. The application is dismissed.

2. Matter to be set down for hearing at dates to be fixed by the Registrar.