Bignell v NSW Casino Control Authority & Anor

1 By Notice of Appeal filed on 27 March 2001, the Appellant claims that the Tribunal, in its decision of 1 March 2001, made four (4) errors of law, namely: (1) The Tribunal erred in failing to make an order joining the Director of Casino Surveillance ("the Director") as a respondent to the complaint. (2) The Tribunal misconstrued the complaint as one which was limited to the NSW Casino Control Authority's refusal to grant the Appellant a "special employees licence" under the Casino Control Act 1992 (NSW). (3) The Tribunal erred in its construction of s 67(4) of the Administrative Decisions Tribunal Act 1997 (the ADT Act), in that it failed to recognise that the interests of the Director would be affected by a decision of the Tribunal in respect of the complaint made by the Appellant. (4) The Tribunal disregarded s 67(1)(a1) of the ADT Act when it refused to make the order joining the Director, as sought by the Appellant in her Points of Claim filed on 2 June 2000. 2 As the hearing of the appeal proceeded, it became apparent that the alleged errors numbered 1 and 2 above were subsumed by the alleged errors numbered 3 and 4. Accordingly, these reasons address the latter two grounds of appeal. Background 3 In July 1995 the Appellant applied for a special employee licence, for the position of dealer, from the Casino Control Authority. In the course of her application, she disclosed the name and prior criminal convictions of her de facto spouse. She and her spouse were interviewed by representatives of the Director of Casino Surveillance, who subsequently recommended to the Authority that her application be refused. That recommendation was brought to the Appellant's attention on 15 January 1996. The Appellant and her solicitor made further submissions to the Authority on 6 February 1996, before formal notification of the Authority's decision not to grant her the requisite licence for the position was given on 29 February 1996. However, the Appellant had already complained to the President of the Anti Discrimination Board on 31 January 1996, in the following terms: "In July of last year I applied for a 'special employees licence' to the Casino Control Authority. My application was refused in January of this year due to what I feel may be Marital Status Discrimination." (emphasis added) 4 In due course, the complaint came on for a directions hearing before the Equal Opportunity Tribunal, where the parties requested that the Tribunal deal with a preliminary objection to the jurisdiction of the Tribunal, raised by the Respondent pursuant to s 155 of the Casino Control Act . On 15 September 1997, the Tribunal, constituted by a judicial member sitting alone, published its reasons in favour of exercising jurisdiction to hear the complaint. The Respondent then appealed to the Supreme Court. The Administrative Law Division upheld the appeal on 22 May 1998. The Appellant then appealed that decision to the Court of Appeal. On 15 March 2000, the Court of Appeal upheld the appeal, thus clearing the way for the Appellant to return to this Tribunal to deal with the initiating complaint. The history of the matter is more fully set out in the Court of Appeal's judgment: Bignell v NSW Casino Control Authority & Anor (2000) 48 NSWLR 462. 5 On 3 May 2000 the matter again came on before the Tribunal for directions. No documents had been filed in the Tribunal at that stage. What transpired at the directions hearing assumes some importance for the purposes of this appeal. Before the standard directions were made, the Appellant's counsel is recorded as follows: "There is perhaps a side issue ... because the complaint documents only refer to the Casino Control Authority, whereas all of the documents that are involved in the complaint also involve the Director of Casino Surveillance, so the complainant will either today, or at a more appropriate time, be making an application for the joinder of the Director of Casino Surveillance because his actions predetermine the actions of the Authority and they're both covered by the one legislation." 6 The Respondent had no instructions at that time on the issue of joinder, so the standard directions were made, subject to the foreshadowed application in the event of objection to the joinder by the Respondent. 7 On 2 June 2000 the Appellant filed Points of Claim in accordance with the directions made on 3 May. Those Points of Claim named the Director of Casino Surveillance as the Second Respondent to the complaint. More particularly, para 4 of the Points of Claim stated "by s 102 of the Casino Control Act the Second Respondent is a statutory officer having the function under s 50(2) of the Act of investigating and inquiring into applications for special employees licences, and the function of reporting to the First Respondent recommending either that the application be granted or that it be refused." 8 The Points of Claim went on to state that "on 15 January 1996 the First Respondent advised the Appellant that the Second Respondent had recommended that her application ... be refused." Paragraphs 21 to 24 inclusive dealt with the grounds of the complaint against the Second Respondent. In summary they were: · the Second Respondent unlawfully caused, instructed, induced, aided or permitted (s 52 of the Anti Discrimination Act 1977 ) (the AD Act) the First Respondent to do an act which is unlawful by reason of ss 44 and/or 47 of the AD Act 1977 . · the Second Respondent provided a service to the Appellant under s 47 of the AD Act . · the Second Respondent discriminated against the Appellant, on the ground of marital status, in contravention of s 47(a) of the AD Act in recommending against the grant of a licence. · alternatively, the Second Respondent discriminated against the Appellant, on the ground of marital status, in the terms on which it provided a service to the Appellant in contravention of s 47(b) of the AD Act. 9 It should be noted that, at the hearing of the appeal, the Panel was advised that the position of Director of Casino Surveillance was to be abolished and that the relevant Part of the Casino Control Act which regulated the relationship between the Authority and the Director was to be repealed. Amending legislation which achieved those ends was passed in July 2001 and commenced on 1 July 2001 : the Casino Control Amendment Act 2001 No. 27. Sections 50 and 52 of the principal Act are now in a substantially different form to that relied upon by the Appellant and s 102 of the principal Act has been repealed outright. The practical effect of this development is that there is no longer a party known to the law capable of being joined to the proceedings. Be that as it may, the Appellant is entitled to a ruling on the substantive matters raised by the appeal. The Construction of s 67(4) of the Administrative Decisions Tribunal Act 1997 - are the Interests of the Director of Casino Surveillance Likely to be Affected? 10 Section 67(4) relevantly provides: "The Tribunal may, by order, make a person who is not a party to proceedings for an original decision ...... a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are likely to be affected by the original decision ...." 11 A number of features of the drafting of the provision are immediately apparent. Firstly, the use of the term "person" as distinct from "party" suggests that the discretion is enlivened on the written application of a person seeking to be joined, rather than on the written application of a party, seeking to join another person. Be that as it may, a party may nevertheless bring to the Tribunal's attention a perceived need for joinder of a person, thereby giving rise to the Tribunal's exercise of the power, of its own motion, as it were. Secondly, when read together with the joinder provisions of the AD Act 1977 (ss 98 and 100), the term "party" is clearly not synonymous with "respondent". A party may be joined in proceedings without thereby attracting the status of respondent ; some additional criteria may need to be met before a joined party becomes a respondent. Thirdly, the exercise of the Tribunal's discretion is dependent upon a finding by the Tribunal that the interests of the person sought to be joined are likely to be affected by the determination of the substantive complaint referred by the President of the Anti Discrimination Board to the Tribunal. 12 However, even if the Tribunal makes such a finding, there is no compulsion on the Tribunal to exercise its discretion in favour of the joinder : see Gregor v State of Victoria [2000] VCAT 414. In Gregor, the Tribunal reviewed the factors relevant to the exercise of the discretion under s 60(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998. Section 67(4) of the ADT Act, whilst not in identical terms, is to the same effect as the Victorian provision. Those factors include whether there was any delay in making the application, whether there is any prejudice to any party or to the person to be joined that might result from the granting or the refusing of the application, whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case for or against that person, and whether, where the person is to be joined as a respondent, the complainant's case against that person is not strongly arguable on a prima facie basis. 13 Leaving these issues to one side for the moment, it is necessary to construe "the interests of the person" and the term "affected" for the purposes of the provision. The starting point is the decision of Re McHattan and Collector of Customs 18 ALR 154. It dealt with the construction of s 27(1) of the Administrative Appeals Tribunal Act 1975 (Clth), which provides :- "Where this Act or any other enactment ... provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision ." (emphasis added) 14 Whilst s 27 is necessarily cast in terms of an application for a review of a reviewable decision, it is of no moment in the present context, since s 67(4) of the ADT Act applies equally to original and reviewable decisions and the thrust of both provisions is the same ; that is, the touchstone of participation in the proceedings is whether the person's interests are affected in the relevant sense. 15 Brennan J (as he then was) held that the relevant interests do not have to be pecuniary or legal, because "restrictions of that kind are incompatible with the variety of decisions which are subject to review" (at 157), or, in this case, the variety of circumstances which are the subject of an original decision. Further, "across the pool of sundry interests, the ripples of affection (sic) may widely extend". Both direct and indirect affectation are within the scope of the provision, and in determining whether the affectation of the relevant interests is too remote for the purposes of the provision, the character of the reviewable decision (or, in this case, the original decision) is relevant. 16 The Full Court of the Federal Court in Alphapharm Pty Ltd v Smithkline Beecham (Australia) Pty Ltd & Ors. (1994) 121 ALR 373 considered the phrase "interests are affected" in the context of an application to review a reviewable decision made under the Therapeutic Goods Act 1989 (Clth). Davies J canvassed the authorities with respect to the general principles covering standing and noted a number of decisions where the standing of a person in administrative legal proceedings was accepted in the absence of any proprietary, commercial or tangible interests : see Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 ; Onus v Alcoa (1981) 149 CLR 27 ; Ogle v Strickland (1987) 13 FCR 306 ; Telecasters North Queensland Ltd v Australian Broadcasting Tribunal (1988) 82 ALR 90 ; Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70 ; Cameron v Human Rights and Equal Opportunity Commission (1993) 119 ALR 279. More particularly, the conclusion he reached was that the nature of the interests affected in any given case will be influenced by the subject matter and content of the relevant decision (in this case, the original decision sought from the Tribunal on the hearing of the complaint). 17 Gummow J expressed the same view thus: "[T]he phrase 'a person whose interests are affected by the decision' and cognate terms appear in a variety of statutes as the identification of the persons who are given standing to seek administrative or judicial review. The day is long gone when there was any general presumption that in such statutes the 'interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law. However, it is important not to draw from what was said in any particular decision by way of identification of that which did or did not amount to a sufficient affectation of an interest any general proposition which may be translated to the instant dispute. In each case, the content of the terms "affect" and "interests" are to be seen in the light of the scope and purpose of the particular statute in issue." 18 Alphapharm was followed in Re Port Douglas Dive & Tours Pty Ltd v Great Barrier Reef Marine Park Authority & Wavelength Reef Charters Pty Ltd [2000] AATA 851. 19 The movement away from a consideration of the "interests affected" in terms of the common law rules of standing and towards a close analysis of the requirements of the legislation in question was endorsed by the High Court in Allan v Transurban City Link Ltd [2001] HCA 58. The majority judgment (and Kirby J in a separate judgment) confirmed that the question whether interests are affected must be answered "by reference to the subject, scope and purpose of [the] statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as 'standing'". 20 It follows that, in so far as it considered the construction of s 67(4) of the ADT Act by reference to the common law on standing, Rajski -v- Ball & Anor. [2000] NSWADTAP 7 can no longer be regarded as correctly decided. 21 The particular statute in issue in the instant matter is the AD Act 1977, because it is that Act which governs the determination of the complaint (the original decision). The Tribunal below decided the application to join the Director upon the basis that he was not a person whose interests could be affected within the terms of s 67(4), because he was not responsible for the refusal of the licence (paras 13-17). There was no analysis of the subject, scope and purpose of the AD Act 1977, rather the matter was approached solely in terms of the then statutory functions of the Director pursuant to the Casino Control Act 1992 (as it then stood). In the light of the above authorities, the Tribunal misdirected itself as to the test to be applied under s 67(4) of the ADT Act and its decision to refuse the application must be set aside. Given that the complaint dates from January 1996, and there have been significant legislative changes since the decision below, it is appropriate that the Panel determines the application. 22 The subject, scope and purpose of the AD Act 1977 and equivalent legislation in other jurisdictions has been explored in the course of numerous decisions. The statutory objects include the promotion of equality of opportunity and rendering unlawful certain types of discrimination. Against this background, what interests, if any, of the Director are capable of being affected by a determination of the complaint ? The complaint for these purposes is the complaint as referred from the Board to the Tribunal, not the complaint as pleaded in the Points of Claim filed by the Appellant. Were it otherwise, it would simply be a matter of drafting Points of Claim sufficiently widely to include persons other than the respondent in the terms of the orders sought, in order to create the necessary affectation of interests. 23 The complaint referred to the Tribunal was the complaint, as characterised by the Board, against the Casino Control Authority. All of the President's correspondence in pursuit of his investigation of the complaint was with the Authority. That is hardly surprising, given that it was ultimately the Authority who refused the licence and it was the refusal of the licence which motivated the complaint. We will return to this aspect of the matter below. 24 It is common ground that the complaint against the Authority could only be determined against the background of the legislation which governed its processes. In 1995/6, s 50(1) of the Casino Control Act required the Authority to refer each application for a licence to the Director. Section 50(2) provided that the Director was to investigate and inquire into each application and report to the Authority, recommending either that the application be granted or that it be refused. Section 50 (3) provided: "If the Director's recommendation is that an application be refused, the Authority is to notify the applicant in writing of that recommendation and allow the applicant at least 14 days to make submissions to the Authority as to why the application should not be refused." 25 Section 52 provided as follows: "(1) The Authority is to consider an application for a licence and is to take into account the report and recommendation of the Director and any submissions made by the applicant within the time allowed. (2) The Authority is not to grant a licence unless satisfied that the applicant is a suitable person to exercise the functions that the proposed licence will authorise the person to exercise. (3) For that purpose, the Authority is to make an assessment of: (a) the integrity, responsibility, personal background and financial stability of the applicant, and (b) the general reputation of the applicant having regard to character, honesty and integrity, and (c) the suitability of the applicant to perform the type of work proposed to be performed by the applicant as a licensee. (4) The Authority is to determine the application by either granting a licence to the applicant or declining to grant a licence, and is to notify the applicant in writing of its decision. (5) The Authority is not required to give reasons for its decision but may give reasons if it thinks fit." 26 These provisions make it clear that, provided the Authority took into account the report and recommendation of the Director, the grant or refusal of a licence remained a decision for the Authority in the exercise of its statutory discretion. 27 Returning then to the issue of joinder, the question should be framed thus; "What interests, if any, of the Director, are capable of being affected by the Tribunal's consideration of whether this exercise of the statutory discretion to withhold a licence by the Authority infringes the Anti Discrimination Act?" 28 It is important to acknowledge at this stage that the Panel has no jurisdiction to determine the merits of the substantive complaint against the Respondent. Strictly speaking, that has nothing to do with the joinder application, although the prospects of success on the part of the Appellant may have some bearing on the exercise of the Panel's discretion to order the joinder, assuming that there are interests of the Director which are capable of being affected. It is sufficient for present purposes to note that some of the propositions advanced by the Appellant against the Respondent Authority are not completely without merit. The characterisation of a "service" for the purposes of anti discrimination legislation is far from settled ; in the context of the exercise of a statutory discretion to grant or withhold a licence, one only needs to have regard to the difference of opinion on the High Court in IW v The City of Perth & Ors [1996-1997] 191 CLR 1 to acknowledge that the Appellant's contention is not fanciful. (See also Proceedings Commissioner v Thoroughbred Racing New Zealand Inc (2000) EOC 93-066) Nor can it be said definitively that the performance of a mandated statutory function, similar to that prescribed by the former s 50(2) of the Casino Control Act is outside the concept of aiding and abetting under the AD Act : see Waters v Public Transport Corporation (1992) 173 CLR 349 per McHugh J. 29 Of course, what remains at the heart of the complaint is whether the Respondent (and those who may have aided and abetted) treated the Complainant's application differently from the treatment given to other applications for the relevant licence, on the ground of marital status. If the complaint were made out, it appears to the Panel that any person who could be said to have aided and abetted that discriminatory treatment would have an interest in the proceedings, sufficient to warrant joining that person as a party. 30 The Appellant's application was to have the Director joined as a respondent. The Panel is of the view that such a course would have been appropriate in the circumstances of this case, because it is clear from the history of the complaint that the Complainant, by "necessary deduction" from the terms of the complaint to the Board, identified the Director of Surveillance as a respondent : Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 ; Australian Doctors Trained Overseas Association Inc v Director General, NSW Department of Health [2000] NSWADT 115. When she wrote to the Board on 31 January 1996, nothing more than the recommendation by the Director had been brought to her attention. She referred to her licence having been refused in January, when in fact it was not refused by the Authority until 29 February 1996. 31 What may have been appropriate in March 2001 is not however appropriate now. The position of Director of Casino Surveillance was abolished as and from 1 July 2001 and by s 12 of Schedule 4, Part 6 of the Casino Control Act 1992 (as amended), any act or omission of the Director of Casino Surveillance that occurred before 1 July 2001 is taken to be an act or omission of the Authority. 32 Accordingly, the Panel declines in the exercise of its discretion to order the joinder of the Director as a respondent.

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