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[2014] NSWCATAD 27
NCAT Administrative and Equal Opportunity
2014-01-29
Original judgment source is linked above.
The application to amend 34Section 103 of the ADA provides: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit." 35When interpreting legislation a construction which promotes the purpose or object of the Act is preferred: section 33 Interpretation Act, 1987 (see NSW Teachers Federation v. President Anti-Discrimination Board & Anor [2005] NSWADT 153 at [9]). The Act is remedial legislation and the objects include the promotion of equality of opportunity and rendering unlawful certain kinds of conduct. Section 103 is drafted broadly and gives the Tribunal a wide discretion to amend a complaint to deal with extra matters which were not investigated by the Board President as part of the complaint: see Bernard v Manly Law Tennis Club [2006] NSWADT 174 at [9] - [10]. 36As was held in Chand v. Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54 at [37]: "The ordinary grammatical meaning of s.103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter 'was not included in the complaint as investigated by the President'. ... there is no implied qualification that the additional complaint or other matter occurred during the period of the complaint as investigated by the President." 37The fact that the complaint did not occur within the period as investigated by the President does not prevent it being addressed: Chand at [38]. 38In this instance, although there was a contest between the parties on the point, it is plain from the letter from the President to the Respondent dated 19 June 2013 that the investigation of the complaints by him had not been completed. The President did not investigate the alleged continuing course of conduct the subject of this application. S.103 allows amendment to include additional complaints which as in the case of this application post-date or encompass conduct which occurred after the date of the complaint. 39The ADA does not stipulate the matters which the Tribunal should take into account when exercising its power to amend a complaint under section 103. The factors to be taken into account will vary from case to case and the weighting to be given to each is a matter for the Tribunal: see Thompson v. Rail Corporation NSW [2008] NSWADT 329 at [13]. 40The Appeal Panel in Chand further held at [38] that: "[t]here is no extrinsic material which sheds light on the rationale for section 103, but the intention of the legislature was to avoid the delay in potential duplication involved in having to lodge a fresh complaint with the President of the ADB in circumstances where a complaint involving the same or some of the same parties or the same or similar circumstances are already before the Tribunal. The most likely source of additional complaints will be complaints that arise after the matter has been referred, but section 103 does not confine amendments to complaints of that kind. A relevant consideration when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. ..." 41In Thompson at [13], the Tribunal set out a number of factors in addition to those referred to in Chand which could be relevant to the exercise of the Tribunal's discretion. The Tribunal will consider each of these factors by reference to the parties submissions below: (a)The age of the additional complaint: see Chand at [38]. The amendment which is sought is for a period which postdates that of the original complaint. There is no distinguishable difference between the age of the substantive complaints and that of the extension application. (b)The relationship of the additional complaint with the complaint that has already been referred: see Chand at [38]. The additional complaint seeks to extend the time period of the existing complaints by reason of what the Applicant submits is a continuing course of conduct in which he has suffered race discrimination and victimisation. The additional complaint is inherently connected with the original complaint. (c)Whether the proposed amendment falls within one of the grounds for declinature available to the President pursuant to section 89B(2) and section 92(1)(a) of the ADA: see Thompson at [13]. Section 89B(2) of the ADA provides: "89B Acceptance or declining of complaints by the President ... (2) The President may decline a complaint if: (a)no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b)the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c)the conduct complained of could amount to a contravention of a provision of this Act (not including section 20D, 38T, 49ZTA or 49ZXC) for which a specific penalty is imposed, or (d)in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e)the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint." On the information before the Tribunal there is no apparent basis for the President to decline the proposed amended complaint on any of these grounds. Section 92(1)(a) of the ADA provides that: "92 President may decline complaint during investigation (1) if at any stage of the President's investigation of the complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or; (v) the subject matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or ..." The Tribunal cannot be satisfied on the material before it that, for the purpose of this application on an interlocutory basis, any of the matters contained with section 92(1)(a) of the ADA could be said to apply to the proposed amended complaint. As to section 92(1)(a)(i) the Respondent says that the matter has the hallmarks of a vexatious complaint, that the application has not been properly particularised and is not supported by any evidence. At this stage of the proceedings the Applicant is subject to a timetable by which it is to file Amended Points of Claim, which he says will be fully particularised, together with evidence by 12 February 2014. There is no material currently before the Tribunal upon which the Tribunal could properly find that the proposed amended complaint is vexatious or otherwise frivolous, misconceived or lacking in substance. (d)Whether the proposed amendment is futile because it seeks to pursue claims that are untenable: see Thompson at [13]. The Respondent says that those complaints regarding security classification are futile by reason that the Applicant's security classification was in fact progressed to a "C2" on 2 May 2012 which it says is not consistent with race discrimination. Additionally, since 23 November 2009 there has been a binding Commissioner's Instruction in place expressly providing that no blanket rule is to be applied to non-citizens in determining security classification and that non-citizens can be progressed to a "C3" security classification. The Respondent says that the Applicant has elected to lead no evidence at all to support a contention that he has an arguable case and that the Respondent's defence must also be considered. The Respondent says it has a defence available under section 54 of the ADA being that the relevant legislative framework (the Crimes (Administration of Sentence) Regulation 2008 (NSW)) expressly requires the Commissioner to take into account the fact that an inmate may be deported in formulating a case plan. The Tribunal cannot be satisfied at this stage as to the futility of the proposed amended complaint at a time before pleadings are finalised or evidence has been served. (e)Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid a possible duplication of proceedings and additional costs: see Thompson at [13]. As the Applicant submits, the proposed amendment would obviate the need for the Applicant to lodge a new complaint with the ADB for the period postdating the present complaint. Allowing the amendment of the complaint would avoid a possible duplication of proceedings and additional costs, enabling the expanded scope of the complaint to be dealt with in the one set of proceedings. (f)Whether the proposed amendment raises any issue of joinder: see Thompson at [13]. There is no issue of joinder raised. (g)Whether allegations contained in the proposed amendment form part of a complaint lodged with the President which is yet to be determined or referred: see Thompson at [13]. There is no evidence of a complaint with the President which is yet to be determined or referred and which is replicated in whole or in part by the allegations contained in the proposed amendment. (h)Whether if refused or granted any party might be prejudiced: see Thompson at [13]. The Respondent made no submissions as to any prejudice it would suffer if the application to extend the period of the complaint were to be granted. Plainly enough it will be put to the extra cost of dealing with any additional matters the subject of complaint in the extended period even though these matters appear to go to the conduct the subject of the existing complaint in any event. These costs would be unavoidable even if the application is refused were the Applicant to lodge a separate complaint in respect of subsequent matters. If the application is refused the Applicant says that he will be prejudiced by having to commence additional proceedings in the ADB which, subject to referral to the Tribunal, concern subject matter that is the same as the current proceedings. (i)Whether the party making the application is in default of previous orders: see Thompson at [13]. The Applicant was in default of the Tribunal's previous orders because: (i) Points of Claim were filed and served on 26 September 2013 instead of by 25 September 2013; and (ii) Particulars of claim were provided by 22 November 2013 instead of by 11 November 2013. The Applicant submits that these defaults were minor in nature and have had a minor or no impact on the progression of the proceedings. The Applicant also asked the Tribunal to take into account the fact that he is in custody and has therefore had limited opportunity to provide instructions to his representatives and limited access to computer, printing and internet facilities to assist his representatives. In all of those circumstances the Tribunal does not believe that a minor default of previous orders should of itself prevent the exercise of the Tribunal's discretion to allow the application. 42The Respondent also relies upon the decision in Bernard v. Manly Lawn Tennis Club Ltd [2006] NSWADT 174 in which it was held at [18] that: "[T]here is little sense in a Tribunal amending a complaint, for example to add a new ground of discrimination, when the amendment sought is so obviously untenable that it could not succeed." 43The discussion in Bernard arose in the context of the operation of section 102 of the ADA upon an application for dismissal of a Plaintiff's claim that was said to be so weak that to permit the proceedings to go to trial would be futile. The Tribunal at [17] referred to the appeal panel's decision in Margan v. University of Technology, Sydney [2003] NSWADTAP 65 and its reference to the test set out in Ritchie's Supreme Court Procedure NSW (Peter Taylor SC Ed., Butterworths, 1984) at [23[-[25]. That test has variously been described by reference to the authorities as whether the matter is "so obviously untenable that it cannot possibly succeed", "manifestly groundless", "so manifestly faulty that it does not admit form of argument", one which "the Court is satisfied cannot succeed", one "where under no possibility can there be a good cause of action" or one which "would involve useless expense". Given the Tribunal's view that the allegation of continuing course of conduct, the subject of the application for amendment, is not on its face unavailable and, in the absence of even a finalised pleading or any evidence, the Tribunal cannot be satisfied that the proposed amendment can be so described. 44Having regard to the matters referred to above and the requirements in section 36 of CATA for the just, quick and cheap resolution of proceedings, the Tribunal is satisfied that it is appropriate in all the circumstances for leave to be granted to the Applicant to amend the complaint in the respects sought, namely to include in respect of both the race discrimination and victimisation grounds conduct occurring after 22 May 2013 and before 22 August 2013.
A further issue 45The Respondent complains that by referring to the acts of race discrimination which are said to have occurred in the context of security classification by reference to a period commencing on 29 July 2010 and ending on 22 August 2013, the application should also be expressed as seeking leave to extend the complaint backwards in time from November 2012 to 29 July 2010. 46During the hearing the Respondent conceded that it took no issue with the period of the race discrimination ground of the complaint insofar as it refers to access to rehabilitative services and external leave programs commencing on 29 July 2010. Nor did the Applicant seek to extend the period of the victimisation ground of the complaint before November 2012. The issue is whether by the application the Applicant is seeking to extend the period of the race discrimination complaint in respect of security classification backwards to 29 July 2010. The significance of 29 July 2010 date is that that is the date on which the DIAC notified Corrective Services that the Applicant was a permanent resident whose visa was liable to cancellation. 47The President's summary identifies the period of complaint in respect of race discrimination from "29 July 2010 to May 2013". The Respondent disputes the Applicant's contention that his complaint about security classification dates from 29 July 2010 saying that it is contrary to the clear terms of the letter of complaint read in context. It submits that the President's Summary which identifies the period of complaint as running from 29 July 2010 to 22 May 2013 is clearly wrong. 48In his letter of complaint dated 16 May 2013 the Applicant identified in respect of his complaint about direct race discrimination an alleged denial of access to "rehabilitative services and programs, namely, bona fide classification services", which the Applicant defined to mean "consideration for a C3 classification, consideration for and to access to external leave programs such as day leave, weekend leave, education leave and works release". The Applicant refers to a discrete period from 12 November 2012 to 22 December 2012 and 13 March 2013 to 30 April 2013. It was this complaint which was referred to the Tribunal pursuant to section 93C of the ADA on 4 July 2013. 49The Respondent says that it is quite incorrect to assert that the Applicant complained about "classification services" dating all the way back to 29 July 2010. The Respondent says that the Applicant identifies no acts of discrimination that occurred as at that date or until 12 November 2012. 50The President of the ADB accepted the complaint of race discrimination for the period 29 July 2010 to 22 May 2013. He did not distinguish between the grounds of alleged race discrimination comprised in classification from services and programs. This was notified to the Respondent by the President's letter dated 17 June 2013. This period of complaint albeit not distinguishing between the grounds of race discrimination also appears in the President's Summary of Complaint. It was the complaint in this form which was referred to the Tribunal pursuant to section 93C of the ADA without opposition from the Respondent. 51There is no application currently before the Tribunal to extend the complaint in respect of race discrimination backwards in time to 29 July 2010. Nor did the Applicant seek to amend its application at hearing. In the Tribunal's view it is otherwise inappropriate to make any order limiting the scope of the complaint in terms referred by the President at a time before pleadings are finalised or evidence on. The Applicant is subject to a timetable to file and serve Amended Points of Claim and any evidence by 12 February 2014. If at that time, or thereafter, the Respondent has grounds to seek to strike out the pleadings in whole or in part, an application can be made. 52For the foregoing reasons the Tribunal issued its orders on 30 January 2013. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2014
Banovec
Director General, Department of Attorney General & Justice
The form of the complaint 25Section 89 of the ADA provides: "89 Form and content of complaints (1) A complaint is to be in writing but does not have to take any particular form. (2) A complaint, as made, need not demonstrate a prima facie case." 26The Applicant submits that in accordance with s.89 any application to extend does not need to take a particular form and need not demonstrate a prima facie case at the application stage. It is submitted that this is supported by the power of the Tribunal to make directions for the filing and service of pleadings and the giving of particulars. It is also said to be supported by the nature of Tribunal proceedings as identified in sections 36 and 38 of CATA for the "just, quick and cheap resolution" of proceedings and the requirement "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 with regard to technicalities or legal forms" and the ability to "inquire into and inform itself in any matter in such manner as it thinks fit, subject to the rules of natural justice". 27The Respondent does not specifically address the form requirement but says that the Applicant has failed to identify the particular acts and omissions said to amount to racial discrimination. 28While the written complaint must enable the identification of the alleged contravention of the ADA it need not allege the relevant facts with particularity; Langley v. Niland (1981) 2 NSWLR 104 at [107-108]. 29In the Tribunal's view there is no legal basis for contending that the material to comprise an amended complaint for the purposes of a section 103 application should be of a more complete or particularised form than is required for the original complaint or that a prima facie case be demonstrated. The complaint in the nature of the alleged course of conduct is sufficiently identified to enable it to be considered for the purposes of the amendment application. 30Neither party referred to any authority on the question of whether a continuing course of conduct of itself might ground a claim for discrimination under the ADA. In Commissioner of Fire Brigades v. Lavery (EOD) [2003] NSWADTAP 60 a fireman was told by his employer in 1971 that he was prohibited from firefighting duties and should remain at the same rank indefinitely due to his disability (loss of sight in one eye). The Tribunal found that there had been continuing discrimination against the fireman during the 6 month period before his complaint by deploying him in a non-operational position and by denying him training and promotional activities. 31That decision was upheld by the appeal panel and in the Supreme Court in Commissioner of Fire Brigades (New South Wales) v. Terence Lavery [2005] NSWSC 268. The Court found that what was involved was "treatment" within the complaint period, not the consequence of earlier treatment: at [55]. 32The decision was considered in Zhang v. Blinds Pty Limited [2010] NSWADT 91. In determining that treatment was outside the complaint period the Tribunal contrasted the consequences of an earlier discrete treatment with treatment which was operative: at [49]. 33Although not determining the matter finally, it follows from this that it is open for the Applicant to argue on a full hearing that the matters the subject of the proposed amended complaint by way of a continuing course of conduct constitute treatment as opposed to being the consequences of an earlier decision. This is not a matter which can or should be determined by the Tribunal on a preliminary interlocutory hearing at a time when amended pleadings are yet to be filed and evidence is yet to served. For the purposes of this application the Tribunal cannot be satisfied that the proposed complaint for the amended period as to a continuing course of conduct is outside the scope of s.89.
(1981) 2 NSWLR 104