Budd v State of New South Wales [2005] FCA 48 | Case summary

REASONS FOR DECISION 1 I have been requested by the President of the Administrative Decisions Tribunal, pursuant to section 14(2)(b) and section 14(5)(c) of the Administrative Decisions Tribunal Act 1997 to hear and determine an application pursuant to section 96 of the Anti-Discrimination Act 1977 ("ADA") by Ms Pamela Budd for leave of the Tribunal to proceed with a complaint under section 92(1) of the ADA against the Administrative Decisions Tribunal. For technical reasons, it has been necessary to refer to the respondent as the New South Wales Attorney General's Department (Administrative Decisions Tribunal). 2 On 28 May 2008, the President of the Anti-Discrimination Board declined Ms Budd's complaint on the basis that it was lacking in substance (see section 92(1) ADA). Background 3 On 20 June 2007, Ms Budd lodged a complaint against the New South Wales Attorney General's Department (Administrative Decisions Tribunal), alleging that she had been unlawfully discriminated against on the basis of her disability. The Registrar of the Tribunal had restricted Ms Budd's access to the Tribunal as follows: (a) telephoning the Registry only on Tuesdays between 10.00 am and 11.00 am and speaking only to the nominated officer, Alan, the Senior Client Services Officer; (b) sending documents by mail; (c) sending urgent communications only (of no more than 10 pages per week) by facsimile. The name of an alternative person for Ms Budd to speak to in the event that Alan was not available was also provided. 4 Ms Budd contended that these restrictions unlawfully discriminated against her on the basis that she suffered from the disability of agoraphobia. 5 The respondent contended that since 13 November 2004, Ms Budd had filed 16 applications in the General Division of the Administrative Decisions Tribunal. The results of these matters were: - 2 affirmed - 2 dismissed - 8 no jurisdiction - 1 finding that contravention occurred and order made; and - 1 matter was withdrawn and dismissed. 6 In the Equal Opportunity Division Ms Budd filed six matters. The results of these were: - 2 dismissed under section 102 of the Anti-Discrimination Act 1977 - 3 leave not granted; and - 1 matter was withdrawn and dismissed. 7 Ms Budd also lodged 11 appeals to the Appeal Panel. The results of these were: - 9 appeals dismissed - 1 appeal upheld with the Appeal Panel extending the appeal to the merits of the case; and - 1 appeal withdrawn and dismissed. 8 In addition to Ms Budd's interaction with staff regarding the above matters, in the period before 4 July 2006 Ms Budd contacted the Registry a number of times most days and engaged in lengthy conversations with different staff members raising the same issues repeatedly. These conversations were particularly frustrating to staff but also meant that staff were not able to attend to other enquiries. Ms Budd also regularly faxed lengthy materials, often up to 200 pages to the Tribunal. This meant that the Tribunal could not receive facsimile communications from other parties as the facsimile machine was engaged with receiving documents from Ms Budd. 9 Officers of the Tribunal dealing with Ms Budd also raised occupational health and safety issues. Accordingly, after consultation with the Disability Services Unit, a letter was forwarded to Ms Budd advising her that her access to services would be restricted, as referred to earlier in these reasons. 10 On 28 May 2008, the President of the Anti-Discrimination Board determined that Ms Budd's complaint was lacking in substance. The reasons for the President's decision were: (i) The Tribunal is not stopping you from accessing services offered by the ADT as you claim but the Registry is merely restricting when you can access those services. (ii) The Attorney General Department's Administrative Decisions Tribunal is not requiring you to comply or is imposing a condition that you are unable to meet because of [your] disability (agoraphobia). The conditions set by the ADT as to when and how you can contact the Tribunal appears to be plausible. (iii) You have not provided supporting information or evidence to substantiate your claim that the ADT has discriminated against you, treated you less favourably or has imposed a condition you cannot comply with because of your disability. Relevant Statutory Provisions 11 The relevant provisions of the ADA are as follows: '92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a 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 (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of: (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96. … 93A Referral of complaints to Tribunal at requirement of complainant (1) If the President has given a complainant a notice under section 87B (4), 91 (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal. (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal. … 96 Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. (2) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal. (3) Subsection (2) does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1987 in relation to evidence given before, or findings made by, the Industrial Relations Commission. (4) A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997.' Principles 12 Deputy President Hennessy in Xu v Sydney West Area Health Service [2006] NSWADT 3 considered federal decisions as to similar provisions to section 96 of the ADA and stated at [14]: '[14] An example of an interlocutory judgment requiring leave is a judgement of a Federal Magistrate to summarily dismiss a discrimination complaint because the complainant has no reasonable prospect of successfully prosecuting the claim or because the claim is frivolous or vexatious: r13.10 of the Federal Magistrates Court Rules 2001 . The discrimination complaints dealt with by the Federal Court are those made under Commonwealth legislation including the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975. The provisions of those statutes are in similar terms to the provisions in the ADA. When hearing applications for leave to appeal from decisions by Federal Magistrates summarily dismissing discrimination complaints, the Federal Court has applied the following principles: (i) generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (ii) where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8]; (iii) to amount to a substantial injustice, the complaint must have some prospect of success including, where relevant, some evidence that at least one of the reasons for the treatment about which he or she complains was a ground of discrimination, such as race: Ugur v NSW Police Service [2005] FCA 48 Emmett J at [19] and [20]; Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [45]; (iv) the evidence about the reasons for the treatment cannot be based solely on the applicant's perception of events - there must be some direct evidence or evidence from which an inference can be drawn, which supports that perception: Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [46]; Awadallah v CPA Australia [2004] FCA 768; (iv) it could not have been intended that an application for summary dismissal would give rise to an obligation upon the applicant to produce all of the applicant's evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial: Rana v University of South Australia [2004] FCA 559 Lander J at [73].' I respectfully agree with her Honour's summary of the principles to be applied in determining applications such as the present. 13 Her Honour went on to state the approach to be taken by this Tribunal in determining matters such as this at [15] - [18]: '[15] Before considering the approach the Tribunal should take to applications for leave, we pause briefly to look at the nature of the President's decision to decline a complaint and the context in which such decisions are made. There are no formal requirements for the content of a complaint to the President. The President's inquiries are conducted as he considers fit and not in accordance with the rules of evidence or the relative formality that applies to Tribunal proceedings. The purpose of the investigation is to assist the President in conciliating the complaints. If the President declines a complaint for reasons including that it is lacking in substance, he is to advise the complainant of the reason for declining the complaint and the rights of the complainant to request that the complaint be referred to the Tribunal. The term "lacking in substance" was interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that "lacking in substance" relates to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." [16] It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. (Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1.) [17] The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. [18] The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. (emphasis added).' I propose to adopt her Honour's approach in determining this matter. Submissions of the Parties 14 Ms Budd, because of her disabilities, made submissions via telephone. She contended that the President was in error in determining that her complaint was lacking in substance because he only took into account her disability of agoraphobia. Ms Budd relied on a letter dated 3 July 2008 to the Registrar of the Equal Opportunity Division, Administrative Decisions Tribunal from Ms Elizabeth Wing, Manager Enquiries & Conciliation Branch, which relevantly stated: 'On 21 June 2007 the Board received a complaint from Miss Pamela Budd alleging discrimination on the grounds of her disability by the NSW Attorney General's Department (Administrative Decisions Tribunal) in the area of goods and services. On the 26 June 2006 the President of the Board forwarded Miss Budd's complaint to the ADT under section 93A of the Act. Miss Budd has since contacted the Board and requested that her file be amended to show she suffers from: - Agoraphobia - Social Phobia - Situational phobia - Anxiety attacks - Panic disorder. 15 Mr M W Crompton, solicitor, who appeared for the respondent, opposed the granting of leave and submitted that the finding of the President would not have been altered had he considered the additional disabilities of Ms Budd. The key element was whether the restrictions imposed upon Ms Budd amounted to discrimination against her. Mr Crompton further submitted that the onus was on Ms Budd to persuade the Tribunal that leave should be granted. In this respect, it was submitted that there was insufficient material before the Tribunal to warrant the grant of leave. Finally, Mr Crompton contended that there was no utility in the matter proceeding to the Tribunal. Consideration 16 The essential question to be determined is whether Ms Budd is able to show a substantial reason for leave being granted. The reasons for the restrictions being placed on Ms Budd by the Registrar of the Administrative Decisions Tribunal were that Ms Budd contacted the Registry on a number of occasions most days and engaged in lengthy conversations with different staff members raising the same issues repeatedly. Ms Budd also regularly faxed lengthy materials, often up to 200 pages, to the Tribunal, resulting in the Tribunal being unable to receive facsimile communications from other parties. 17 For proceedings such as those sought to be brought by Ms Budd, there is often reliance on the situation of "a comparator", and that is what Ms Budd has done as I understand her submissions. The appropriate comparator is with a person without Ms Budd's disabilities: see Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 at 137 per Gleeson CJ. Taking into account the evidence that the Tribunal has available, Ms Budd is unlikely to be able to show that if she was not suffering from agoraphobia (and the other disabilities), the respondent would have behaved any differently. That is because the respondent is not requiring Ms Budd to comply, or is imposing a condition that she is unable to meet because of her disability/disabilities in circumstances where the Tribunal has obligations in terms of the public interest to provide appropriate services to all clients of the Tribunal. 18 The restrictions do not seem to me to be unreasonable. Such conditions would no doubt be imposed on any client who regularly and repeatedly engaged in lengthy conversations with employees of the Registry and faxed voluminous materials. The Tribunal has not stopped Ms Budd from accessing services offered by it but restricted when such access can occur. There is no direct evidence, nor evidence from which an inference can be drawn, that there was a refusal to allow Ms Budd unrestricted access to the Registry because of her disability. In those circumstances, I consider that the complaint does not have any reasonable prospects of success. 19 This is an unusual matter in that there is not conflicting or untested evidence, or a serious question of fact to be determined, or a serious question of credit involved. In these circumstances, in my view, there is not a substantial reason for allowing the complaint to proceed. Access to any court or tribunal registry is a fundamental entitlement for any litigant. Ms Budd's access is still available, albeit, restricted because of what has been regarded as a quite inappropriate use by her of the services and facilities provided by the Tribunal. In my view, her claim does not have reasonable prospects of success and there is no other substantial reason for granting leave. 20 I accordingly make the following order. The application by Ms Budd for leave of the Tribunal to proceed with a complaint under s 92(1) of the Anti-Discrimination Act 1977 is refused.

Budd v State of New South Wales

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