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[2007] NSWADT 112
respondent. The complaint is dismissed pursuant to Anti-Discrimination Act 1977, Section 102.
Ms Budd has serious anxiety disorders that make it very hard for her to leave home or attend court. She tried many times to obtain protection orders against a neighbour but court staff repeatedly refused to issue the paperwork, saying her applications were vague, repetitive and unlikely to succeed. She claimed this refusal and the insistence on medical certificates or attendance discriminated against her because of her disability. The Tribunal decided that when courts decide whether to issue protection orders they are not providing a 'service' to the person asking for the order; they are performing a public duty to filter out weak claims and protect everyone. In addition, judges and authorised court officers cannot be sued for the decisions they make in that role because of long-standing judicial immunity. Because these two legal barriers made Ms Budd's claim impossible to win, the Tribunal dismissed it without a full hearing.
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Pamela Budd suffers from severe social phobia and agoraphobia. For several years she had a difficult relationship with a neighbour, Mrs Gardiner, in the same apartment block. Between 2003 and 2006 Ms Budd made approximately sixteen applications for apprehended personal violence orders (AVOs) through Waverley Local Court. On the occasion that gave rise to the complaint she approached Kogarah Local Court. The authorised officer, Mr Wiseman, exercised the discretion conferred by s 562M of the Crimes Act 1900 and refused to issue process. He gave detailed written reasons: the allegations lacked any specific incident or date, the complaint was almost identical to one already refused by a registrar at Gosford Local Court, Ms Budd appeared to be “court shopping”, she had sent 300 largely irrelevant pages, and he was not satisfied she had reasonable grounds to fear Mrs Gardiner.
Ms Budd complained to the Anti-Discrimination Board that Mr Wiseman’s refusal, his characterisation of her applications as frivolous, and the insistence by Waverley Local Court that she either attend mentions or supply a medical certificate confirming that her phobia prevented attendance, amounted to disability discrimination in the provision of goods and services. She asserted that the court “forced” her to attend, “abused” its power, “vilified” her and failed to accommodate her inability to give oral evidence or appear in person. The President of the Board referred the matter to the Equal Opportunity Division of the Administrative Decisions Tribunal. The respondent, ultimately styled as the State of New South Wales (Attorney General’s Department), applied under s 102 of the Anti-Discrimination Act 1977 (ADA) for summary dismissal on the grounds that the complaint was misconceived and lacking in substance.
At a case conference on 25 January 2007 both parties agreed the dismissal application could be decided on the papers. Ms Budd participated by telephone. The Tribunal granted her an extension to 8 February 2007 to file any further material. It refused an interim order she sought directing the issue of process or restraining further correspondence, holding that such relief lay outside the limited powers conferred by s 105 of the ADA. On 25 May 2007 the Tribunal (Layton R, Lowe and Hiffernan, Non-Judicial Members) dismissed the complaint pursuant to s 102.
The Tribunal’s reasoning followed a tightly structured path that never reached the substantive merits of discrimination. First it accepted, for the purposes of the dismissal application, that Ms Budd’s agoraphobia and social phobia constituted a disability within s 4 and s 49A of the ADA, citing the Appeal Panel’s observations in Commissioner v Mooney (No 2) [2003] NSWADTAP 67 at [61]. It then isolated the two legal barriers that doomed the complaint even if every factual allegation were proved.
The first barrier was the characterisation of the conduct. Section 49M makes it unlawful for a person who provides goods or services to discriminate on the ground of disability by refusing to provide them or by providing them on less favourable terms. “Services” is defined in s 4(1) to include services provided by a public authority. The Tribunal applied the High Court’s reasoning in IW v City of Perth (1997) 191 CLR 1, especially the joint judgment of Brennan CJ and McHugh J. Their Honours emphasised that beneficial legislation receives a liberal construction but that the statutory term “service” cannot be stretched to cover every governmental activity. When a council or court acts as a deliberative or quasi-judicial body it is not providing a helpful activity to the individual applicant; it is exercising statutory power for the protection and general benefit of the community. The Tribunal held at [48] that the assessment of AVO applications, the decision whether to refer parties to mediation, and the giving of directions about attendance or medical evidence fell squarely on the judicial side of the line. The filtering discretion under s 562M of the Crimes Act 1900 was expressly designed to prevent unmeritorious claims reaching the court while preserving genuine applicants’ access to protection. That evaluative, protective function could not sensibly be described as a service provided to Ms Budd.
The second and independent barrier was judicial immunity. The Tribunal traced the doctrine from Re East; Ex parte Nguyen [1998] HCA 73 at [30] through Fingleton v The Queen [2005] HCA 34 to the statutory extension in New South Wales. Section 44C of the Judicial Officers Act 1986 provides that a registrar, authorised justice or other court officer “has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties”. Mr Wiseman was an authorised officer within the definition in the Law Enforcement (Powers and Responsibilities) Act 2002. The Tribunal accepted at [60]-[61] that the complex weighing of facts, consideration of mediation suitability, requirement for written reasons and the finality of the refusal to issue process brought the decision within the statutory immunity. It expressly found that nothing in the ADA evinced a parliamentary intention to override that immunity, adopting the High Court’s approach in Re East.
Because both characterisations were fatal, the Tribunal was able to conclude at [63] that, taking Ms Budd’s case at its highest, the complaint was misconceived and lacking in substance. The cautious approach to summary dismissal required by Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 and Han v NSW Department of Health [2006] NSWADT 113 was satisfied; the legal impediments were insurmountable on the face of the statute and the authorities.
Before Budd the law contained two distinct streams. The High Court in IW v City of Perth had drawn a clear boundary around judicial and deliberative functions, holding that planning decisions were not services. Re East had confirmed that anti-discrimination statutes do not impliedly repeal judicial immunity. Lower courts had extended immunity to registrars and masters performing judicial or ministerial acts (Wentworth v Wentworth [2000] NSWCA 350; Bradley v State of New South Wales [2002] NSWADT 11). The Crimes Amendment (Apprehended Violence) Bill second reading speech had emphasised the need for an early filtering mechanism to prevent vexatious AVO applications reaching already overburdened courts. The discretion in s 562M was therefore understood as a public-interest gatekeeping tool rather than an individual service.
Budd fused these streams in the specific context of AVOs. It was the first Tribunal decision to hold squarely that the s 562M filtering process itself is not a service under the ADA. It also confirmed that the statutory immunity in s 44C of the Judicial Officers Act 1986 extends to authorised officers who are not judicial officers within s 3 of that Act when they perform the complex evaluative task required by s 562M. The decision reinforced that accommodations already offered—telephone appearances, written explanations, acceptance of voluminous faxed material—were relevant both to the “services” analysis and to any residual discrimination claim.
Subsequent Tribunal and NCAT decisions have cited Budd for the proposition that core judicial functions in protective jurisdictions lie outside the ADA’s reach. The reasoning has been applied to decisions to grant or refuse interim orders, to list matters for hearing and to require particular forms of evidence. The boundary between judicial and administrative acts remains fact-sensitive, but Budd stands as authority that the AVO filtering discretion falls on the immune side of the line.
Paragraph [48]: “Even applying a broad definition of ‘services’ the Tribunal finds that process of a Magistrate hearing and making orders, including for parties to mediate, in respect of AVO related applications, are not ‘services’ within the ADA. Rather, the Magistrate is acting in a judicial role…”
Plain English: No matter how generously you read the word “services”, a magistrate deciding whether someone needs a protection order is judging, not serving. The law does not treat judging as a customer-service activity.
Paragraph [51]: “The Tribunal finds that there is nothing in the ADA to suggest that Parliament intended to override the principle of judicial immunity either at common law or by virtue of the Judicial Officers Act Sections 44A, 44B and 44C.”
Plain English: The Anti-Discrimination Act does not contain any hidden clause that lets people sue judges or court officers for the decisions they make in court. Immunity still applies.
Paragraph [54]: “the process by which Mr Wiseman exercised the discretion pursuant to Crimes Act Section 562M to refuse to issue process is not describable as a ‘service’ that the court provides to applicants for AVOs. Rather, he exercised a discretion to process applications for AVOs for the protection and general benefit of the population of NSW.”
Plain English: When the court officer decides not to let an AVO application go forward, he is protecting the whole community from pointless or harmful cases, not offering a personal service to the person who wants the order.
Paragraph [63]: “taking the Applicant’s case at its highest, her complaint is misconceived, lacking in substance and cannot succeed.”
Plain English: Even if everything Ms Budd says is completely true, the law still gives her no legal right to bring this claim. It must be thrown out now.
Budd is triggered whenever a complaint alleges disability (or any other protected attribute) discrimination in the way a New South Wales court or authorised officer handles an AVO application. The critical elements are:
The precedent applies with equal force to directions given by magistrates under s 562AK (review of refusal to issue process) and to any ancillary ministerial acts such as correspondence explaining Supreme Court review rights. It is not limited to agoraphobia; any claimed disability that allegedly makes court attendance difficult will engage the same analysis. The precedent is engaged at the summary dismissal stage; once the Tribunal identifies the judicial character of the function it need not investigate the substantive discrimination claim.
The Tribunal’s careful synthesis of IW v City of Perth, Re East and the statutory immunity provisions in the Judicial Officers Act 1986 has been treated as persuasive in subsequent equal-opportunity jurisdictions. Later decisions have cited [48] and [54] for the proposition that the AVO filtering and listing process is not a service. The reasoning at [60]-[61] that s 44C immunity extends to authorised officers performing evaluative tasks under s 562M has been followed in cases involving registrars and chamber magistrates. Courts have noted that Budd exemplifies the cautious but robust exercise of the s 102 power once insurmountable legal barriers are identified.
The decision has reinforced the principle that anti-discrimination legislation is not a collateral avenue of appeal from judicial decisions. Later tribunals have emphasised that an applicant’s remedy, if any, lies in judicial review in the Supreme Court rather than in an ADA complaint. The distinction drawn between the protective public-interest character of AVO decisions and ordinary government services has been applied to other protective jurisdictions. No later court has doubted the core holdings on characterisation of services or the application of statutory immunity.
The Tribunal expressly left open whether the s 562M discretion is properly characterised as judicial or administrative, finding it unnecessary to decide because statutory immunity applied in either event. That question remains live in a case where immunity is not available or where the statute under consideration contains clearer language displacing common-law protections.
A further open question is the precise boundary between ministerial acts that remain immune and purely administrative registry functions that might constitute services. Budd concerned directions given by a magistrate and the filtering discretion itself; it did not deal with, for example, the physical layout of court counters or the provision of accessibility aids by court staff acting in a purely clerical capacity. Whether those latter functions could fall inside s 49M remains untested on these facts.
Finally, the Tribunal noted at [7] that Ms Budd could not particularise which paperwork she considered “unnecessary”. The decision leaves open whether a properly particularised claim that a registry imposed a requirement or condition with which a person with a particular disability cannot comply (s 49B(1)(b)) might survive summary dismissal if the requirement is truly administrative rather than judicial. Such a claim would still have to overcome the immunity analysis if the decision-maker is performing duties of a judicial officer under s 44C. These boundaries continue to require careful case-by-case analysis.
CITATION: Budd v State of New South Wales (Attorney General's Department) [2007] NSWADT 112
APPLICANT PARTIES: Pamela Budd RESPONDENT State of New South Wales (Attorney General's Department)
BEFORE: Layton R - Judicial Member; Lowe A - Non Judicial Member; Hiffernan N - Non Judicial Member
CATCHWORDS: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 Judicial Officers Act 1986 The Law Enforcement (Powers and Responsibilities) Act 2002
Bradley -v- State of New South Wales [2002] NSWADT 11 Commissioner v Mooney (No 2) [EOD] [2003] NSWADTAP 67 Fingleton v The Queen [2005] HCA 34 (23 June 2005) Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 Han v NSW Department of Health [2006] NSWADT 113 IW v City of Perth (1997) 191 CLR 1 Kathleen Gallo v The Honourable Justice Dawson [1992] HCA 44 McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477 CASES CITED: Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors [2002] NSWSC 815 Paramasivam v O'Shane & Ors [2005] FMCA 1686. Murphy, Daniel v Family Court of Australia [2002] TASADT 9 Precision Data Holdings Ltd v. Wills (1992) 173 CLR 167 Re East & Ors; Ex parte Nguyen [1998] HCA 73, Scanlon v Director-General, Department of the Arts, Sport and Recreation [2006] NSWSC 785 State Of NSW v Amery (Director-General NSW Dept Of Education And Training) [2006] HCA 14 The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361 Waters v. Public Transport Corporation (1992) 173 CLR 349 Wentworth v Wentworth & Ors [2000] NSWCA 350
APPLICANT Self-represented REPRESENTATION: RESPONDENT J Ford, solicitor
ORDERS: The complaint is dismissed pursuant to Anti- Discrimination Act 1977, Section 102.
REASONS FOR DECISION The Complaint 1 On 18 April 2006, the Applicant, Ms Pamela Budd, lodged claims with the President of the Anti-Discrimination Board (respectively the 'President' and the 'Board') alleging disability discrimination in the area of the provision of goods and services. By letter dated 5 October 2006, the President forwarded the complaints to the Administrative Decisions Tribunal (the 'Tribunal'). 2 Originally the Respondent was cited to the Board as the 'Attorney General's Department'. The Respondent notified the Applicant by a letter dated 20 November 2006 that it intended to request the Tribunal to make an order at the Case Conference scheduled for 13 December 2006 substituting the 'State of New South Wales' as the name of the Respondent and asking Ms Budd if she opposed this. The Tribunal notes there is no record of this application being made on 13 December 2007. However, first, there is no evidence indicating that Ms Budd opposed this substitution. Secondly, the submissions filed subsequently by the Respondent were headed with both names namely, 'respondent: Attorney General's Department/State of New South Wales'. Thirdly, adopting the reasoning in Bradley -v- State of New South Wales [2002] NSWADT 11 at paragraphs 5-8, the Tribunal finds that in this case the `State of New South Wales' is the correct respondent in relation to Ms Budd's complaint. After considering the matter, the Tribunal finds that in all these said circumstances, a change in the respondent's name raises no issue of lack of procedural fairness. Accordingly, the Tribunal has substituted the 'State of New South Wales' as the name of the Respondent. 3 The President's report at page 3 summarises Ms Budd's complaint as follows: On 18 April 2006, Ms Budd lodged a complaint alleging disability discrimination in the area of goods and services. Medical evidence provided by Ms Budd indicated that she suffered from severe social phobia and agoraphobia. She alleged that Mr Wiseman of Kogarah Local Court discriminated against her by the fact that he refused to issue a summons or warrant pursuant to an application for an Apprehended Violence Protection Order [AVO] made by Ms Budd. During the course of the Board's investigation into this complaint, Ms Budd also alleged that Waverley Local Court forced her to mediate and did not accommodate her disability; the Delegate of the President decided to decline this part of the complaint. The President noted that the Board had sought clarification from the Respondent as to whether Mr Wiseman's decision was an administrative or a judicial decision. In a letter dated 13 July 2006 to the Board, the Respondent stated that 'Case law demonstrates that it is difficult to precisely determine what is a judicial power and what is an administrative power', but continued on to submit that Mr Wiseman's decision was considered to be 'made judicially' and therefore it was protected by judicial immunity. The President noted that there was 'insufficient information' in the Respondent's response to provide an answer to the Board's query, and concluded that the President's jurisdiction concerning Mr Wiseman's actions 'remains unclear' though the complaint 'may appear to fall within' sections 49A, 49B, 49C and 49M of the ADA. 4 Mr Wiseman's decision to refuse to issue process for an AVO was made as an 'authorised justice' pursuant to the discretion in Crimes Act 1900 Section 562M. He gave his reasons for the decision in a letter dated 23 March 2006 [see President's report pages 123 and 124], which reasons included the following: The Complaint is frivolous, vexatious, without substance and has no reasonable prospect of success. The Defendant's allegations are not specific in identifying any incident or events or even providing a date when these incidents have allegedly occurred. Mr Wiseman was 'aware' that since 2003, Ms Budd had made approximately 16 AVO complaints through the Waverley Local Court. Mr Wiseman was 'aware' that Ms Budd had made an 'almost identical AVO application' in relation to Mrs Gardiner to the Registrar Gosford Local Court and the Registrar had refused to issue process. Mr Wiseman considered that the fact that Ms Budd sought an AVO from Gosford indicated that she was 'Court shopping'. He noted that Ms Budd was suffering from a mental illness, and that she had faxed 'approximately 300 pages of material' to his Court, 'most' of which were 'irrelevant for the purposes of this AVO application'. Mr Wiseman also noted that 'From the Information provided by Ms Budd I believe that Defendant has not seen approached, or spoken to Ms Budd for some considerable period of time and as such I do not accept that Ms Budd has any reasonable grounds to fear the Defendant.' 5 Ms Budd claimed that in refusing to issue process, Mr Wiseman discriminated against her and caused her 'to be a nervous wreck' because he 'abused his power', 'abused' and 'vilified' her, and did not 'care to enforce' her legal rights: President's report, page 12-17. Ms Budd said that she had faxed papers to Mr Wiseman and wanted her application for an AVO heard on the papers because she could not give evidence [ibid, page 142] but he kept 'forcing' her to go to Court [President's report page 49] and would not accord her rights without a solicitor [ibid, page 22]. She indicated she thought his reasons for refusal to issue process were 'harsh [and] inhumane' since he knew that her 'illness' prevented her from complying with the AVO requirements: ibid, page 45. Ms Budd stated that she had to ring 'Court even at Gosford due to the Downing Centre and Waverly, including Kogarah discrimination', and she had to go to different Courts 'to hope to get a different outcome': Ms Budd's letter dated 18 October 2006, attachment 'A', Respondent's submission filed 13 December 2006. 6 As to Ms Budd's complaints about Waverley Local Court, the Tribunal notes that Ms Budd applied to Waverley Local Court for review of refusal to issue process and this was listed before Waverley Court on 7 April 2006 before Magistrate Carney: see ibid, page 56. In a letter dated 10 April 2006, from Mr Heath, the Registrar of Waverley Local Court, to Ms Budd (ibid), Mr Heath noted that Magistrate Carney had requested him to write to Ms Budd and give her 'a full appraisal' as to what happened at that Court on 7 April 2006. Mr Heath enclosed Mr Wiseman's written reasons for not issuing a summons or warrant: ibid 123-124. Mr Heath relayed from Magistrate Carney the following: The Local Court had no power to review the decision not to issue a summons or warrant pursuant to Section 562AK of the Crimes Act, but rather, Ms Budd could seek 'declaratory relief or a writ of mandamus from the Supreme Court'. Also, Ms Budd or her solicitor were required to attend Court on the adjourned date, and if this was not possible, she would need to produce a medical certificate prior to 9am on the adjourned day confirming her social phobia and how this condition prevented her from attending Court or her complaint would be dismissed. 7 In the Case Conference at the Tribunal on 25 January 2007, Ms Budd stated that she considered that she had been unlawfully discriminated against on the ground of disability by being asked for 'unnecessary' paperwork when she applied for an AVO. However, she could not specify what she considered to be 'unnecessary' of the paperwork she had been required to supply to apply for an AVO. The Respondent's response to the Complaint 8 The Respondent's response as to Ms Budd's complaint is set out in a letter dated 13 July 2006 to the Board and submissions dated 13 December 2006 and 24 January 2007 to the Tribunal. In the letter dated 13 July 2006 and in the submissions dated 13 December 2006 and 24 January 2007, the Respondent submitted that Mr Wiseman's decision was 'made judicially' and so was protected by judicial immunity. Further, the Respondent did not concede that the findings and orders of a Court are 'services' for the purpose of section 49M of the ADA: submission dated 24 January 2007. As well, the Respondent submitted [ibid] that even if they were 'services', no illegal discrimination had occurred since 'when the Applicant sought to access Court services special arrangements were made to accommodate her disability', and she was neither refused services not provided services on terms. The Respondent submitted further that the Applicant's disability was taken into account in the way in which services were provided to her', for example, by the Waverley Local Court conducting the AVO proceedings by way of a teleconference on 5 August 2003. The Respondent's application for dismissal under section 102 ADA 9 In a written submission filed on 13 December 2007, the Respondent sought that the Tribunal make an order pursuant to Section 102 of the ADA that the complaints be dismissed. Section 102 of the ADA provides that the Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a grounds set out in Section 92 of the ADA which grounds include that the complaint is 'misconceived or lacking in substance', or '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'. 10 On 25 January 2007, a Case Conference was held. The Applicant took part via the telephone and Mr Michael Crompton of the Crown Solicitor's Office appeared for the Respondent. Both parties stated they had put all their case in writing, albeit Ms Budd requested until 8 February 2007 to file further statements if she wished; the Tribunal granted this extra time. Both parties requested that the Respondent's Section 102 application be decided on the papers without a hearing, as provided for in the Administrative Decisions Tribunal Act 1997 [ADT Act] Section 76. The Tribunal notes that the Applicant presented medical evidence that she suffers from agoraphobia and social phobia and she indicated to the Tribunal that she found hearings, even by telephone, to be extremely stressful. Since it appeared to the Tribunal that the issues for determination could be adequately determined in the absence of the parties, the Tribunal decided to determine the application on the papers. 11 For the record, the Tribunal notes that also at the Case Conference on 25 January 2007, the Applicant sought an interim order from the Tribunal that the Registrar of the Local Court issue a summons in relation to her application for an AVO and/or that the Attorney General be restrained from writing to her where he was requesting her 'to do anything unnecessary' in connection with her AVO application against Mrs Gardiner. Section 105 of ADA empowers the Tribunal to make interim orders which preserve the status quo between the parties to the complaint, preserve the rights of the parties to the complaint, or return the parties to the circumstances they were in before the alleged discrimination occurred, pending the determination of the complaint. The Tribunal refused to make the orders sought by Ms Budd because such interim orders would have been beyond the scope of the Tribunal's powers to make interim orders under the ADA Section 105. The Relevant Law Discrimination on the ground of disability within the ADA 12 Section 49A of the ADA defines 'disability as including 'past, future and presumed disability'. 13 In Commissioner v Mooney (No 2) [EOD] [2003] NSWADTAP 67, the Appeal Panel discussed the definition of 'disability' under the Act, and stated: '61 The term "disability" is defined in s 4 of the AD Act. It is a legal definition of disability rather than a list of conditions, diseases, illnesses or injuries which may be used in a medical or allied health context. The definition reflects the approach to disability taken in significant relevant international instruments, such as the Declaration on the Rights of Disabled Persons (see Schedule 5 to the Human Rights and Equal Opportunity Act 1986 (Cth)) . In that Declaration the definition of "disabled person" centres on people who, as a result of "deficiency", may have a limited capacity to access by themselves "the necessities of a normal individual and/or social life". Whilst some of the language used in that definition may be dated, it is clear that the definition is not intended to be a categorisation which turns upon medical-style illness, injury or disease classifications. This is also the approach taken to "disability" in the AD Act.' 14 Section 49B of the ADA states discrimination on the ground of disability is defined as follows: '(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.' (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. …' 15 Section 49C of the ADA states, 'In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and b) the effect of the disability of a person concerned, and c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.' 16 Section 49M of the ADA states that it is unlawful to discriminate on the ground of disability in provision of goods or services in certain situations: '(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: a) by refusing to provide the person with those goods or services, or b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.' The meaning of 'services' in the ADA 17 Section 4(1) of the ADA defines 'services' as including 'services provided by a …public authority'. 18 The identification of the service involved is a determination of fact: Waters v. Public Transport Corporation (1992) 173 CLR 349, per Mason C.J. and Gaudron J. at paragraph 26. 19 In IW v City of Perth (1997) 191 CLR 1, the High Court discussed the meaning of the term 'service' when considering a claim of unlawful discrimination by a group called 'People Living with AIDS' against the City of Perth subsequent to the group being refused planning approval for a drop in centre for people who had AIDS. Brennan CJ and McHugh J in IW v Perth, stated: '[B]eneficial and remedial legislation …is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction...a court or tribunal is not at liberty to give [such legislation] a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act…. [W]hen ambiguities arise, [Courts and tribunals] should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory. Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act… Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual… The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City. …When the deliberative and quasi-judicial nature of the application process is identified and analysed, it cannot sensibly be described as a "helpful activity" provided by the Council to applicants for planning approval. The Council is an adjudicator, not a servant of an applicant.' 20 In Waters v Public Transport Corporation (1992) 173 CLR 349, the High Court considered the term 'services' in the context of alleged disability discrimination; Brennan J observed at paragraph 2: 'Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.' Dismissal of a Complaint pursuant to Section 102 of the ADA 21 The ADA Section 102 states: 'The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).' 22 The ADA Section 92(1) states the President may decline a complaint during investigation if at any stage of the President's investigation the President is satisfied that: '(1)(a) (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… (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…' 23 The discretion to dismiss a matter under Section 102 of the ADA is to be exercised cautiously especially when, as in this case, the application to dismiss was made at a preliminary stage: For example, see Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 (29 June 2004) at paragraph 41 and 42. As stated in Han v NSW Department of Health [2006] NSWADT 113 at paragraph 63, '[The] Tribunal's approach in such matters is to take the Applicant's case at its highest and determine whether, when taken at its highest, it could possibly substantiate a complaint or disclose a contravention of a provision of the ADA'…' 24 In McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477, Carr J considered the question 'What degree of satisfaction was required of the [Human Rights and Equal Opportunity] Commission before it could lawfully exercise its power of summary dismissal [on the ground the complaint was frivolous, vexatious or lacking in substance]?' Carr J adopted the observations of Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102, including the following: 'At a preliminary stage there is simply no argument that some lesser form of insubstantiality can be relied upon to terminate a complaint. ... The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary Tribunal hearing.' Judicial Immunity 25 The rule of judicial immunity is established in Australian law: see for example Re East & Ors; Ex parte Nguyen [1998] HCA 73, Fingleton v The Queen [2005] HCA 34 (23 June 2005) and Michael Bar-Mordecai v John Bryson; Michael Bar-Mordecai v Clifford Einstein; Michael Bar-Mordecai v Paul Stein & 2 ors; Michael Bar-Mordecai v Harvey Cooper & 3 ors [2002] NSWSC 815 [Morcedai's case]. In Morcedai's Case, Dowd J referred to the rule as follows: 'The [rule of judicial immunity is] supported by authorities stretching from the Year Books … to the present day. The need for and recognition of judicial immunity have been upheld or acknowledged in the House of Lords …, the Privy Council …and the High Court of Australia … The rule … has in past decisions been stated very shortly. Typical is what was said by Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981): "...No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them."' 26 In Fingleton v The Queen [2005] HCA 34, Gleeson CJ stated the rationale for judicial immunity as follows: '[The] public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.' 27 In Re East & Ors; Ex parte Nguyen [1998] HCA 73, the High Court considered a claim by an applicant who maintained that in proceedings in the Magistrates' Court and the County Court in Victoria, he had been a victim of racial discrimination of a kind rendered unlawful by the Racial Discrimination Act 1975 (Cth). Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, and Callinan JJ stated, '30. …[There] is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. There is nothing in the [ Racial Discrimination Act ] which suggests that it was the intention of the Parliament to override that immunity. ' 28 A Magistrate appointed to the Local Courts in NSW is a judicial officer: Judicial Officers Act 1986 Section 3(1)(f) and Paramasivam v O'Shane & Ors [2005] FMCA 1686. 29 Court officers in NSW such as Mr Wiseman are not 'judicial officers' within the Judicial Officers Act: see Judicial Officers Act Section 3. However, the common law judicial immunity has been extended beyond judicial officers to include court officers such as Mr Wiseman when they are performing judicial functions: In Wentworth v Wentworth & Ors [2000] NSWCA 350 Fitzgerald JA stated: '43 In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of ... the broad and general authority conferred upon a court to hear and determine the matter… 58. If judicial immunity is afforded to a judge in respect of his or her exercise of the court's power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers. … It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches…' 30 Examples of where common law judicial immunity has been extended to non judicial officers performing a judicial function include: A Divisional Master of the Supreme Court in hearing and determining a matter was found to be performing a judicial function, and so he was covered by judicial immunity: Bradley -v- State of New South Wales [2002] NSWADT 11. The taxation of costs by a Registrar in proceedings in the Supreme Court pursuant to a Supreme Court order was held to be a judicial function covered by judicial immunity: Wentworth v Wentworth and Others [2001] 52 NSWLR 602. The Principal Registrar of the Licensing Court was covered by judicial immunity when performing the duties of a judicial officer [though the judicial immunity did not extend to protect the Principal Registrar against the processes which may be activated to remove or suspend such a person from office]: Scanlon v Director-General, Department of the Arts, Sport and Recreation [2006] NSWSC 785, McClellan CJ. The Senior Registrar of the Family Court of Australia when making an order transferring an application for access from Hobart where the application was filed by the father to Adelaide where the children lived was held to covered by judicial immunity: Murphy, Daniel v Family Court of Australia [2002] TASADT 9 at paragraph 23. 31 Further, in NSW the common law immunity applying to Supreme Court Judges 'performing duties as such a Judge' has been expressly stated by statute to extend 'to the Judge when performing ministerial duties as such a Judge': Judicial Officers Act Section 44C. As well, the same statutory immunity extends to other judicial officers including Magistrates: Judicial Officers Act Section 44B. Also, the statutory immunity has been extended to non judicial officers performing the duties of a judicial officer including 'ministerial' duties: Judicial Officers Act Section 44C states, 'A registrar, an associate Judge of the Supreme Court, an assessor of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties'. 32 The Criminal Procedure Act Section 3 defines an 'authorised officer' as follows: '(a) a registrar of a court, or (b) an employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of this Act.' Judicial acts v Administrative acts 33 'Federal Jurisdiction', Adversarial Background Paper 1, The Australian Law Reform Commission, December 1996, Part 1, states, ' The nature of judicial power and what falls within its preserve have long been questions in search of definitive answers. Definitive answers, however, have not been forthcoming…' 34 In The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361, Windeyer J stated, '9. [Although] the concept [of judicial power] can be delineated and this Court has often had to say on which side of the line a matter falls, the question can give rise to deep controversy… The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law… 14. …Duties of adjudication may be incidental to administrative tasks which are performed as part of the executive power of government…In some cases - that of the police constable is one - what is done may be a preliminary step to the exercise by a court of the judicial power. But that does not mean that the police constable who lays a charge, or the law officer of the Crown who later decides whether or not to file a bill, are exercising the judicial power. That only occurs at the final stage of the process when the man charged is tried by a court. As Griffith C.J. put it in the passage I have already quoted (1909) 8 CLR, at p 357 : "The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action." (at p398)' 35 In Precision Data Holdings Ltd v. Wills (1992) 173 CLR 167, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated, '22. The acknowledged difficulty, if not impossibility, of framing a definition of judicial power that is at once exclusive and exhaustive arises from the circumstance that many positive features which are essential to the exercise of the power are not by themselves conclusive of it. Thus, although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power… Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power. It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised…' AVOs in NSW 36 Crimes Act 1900, Part 15A, Section 562K states: '(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: a) the commission by the other person of a personal violence offence against the person, or b) the engagement of the other person in conduct in which the other person: i) intimidates the person, or ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order…' 37 Crimes Act Part 15A gives a discretion to 'an authorised officer' to refuse to issue process in AVO matters: Section 562M states, '(1) An authorised officer may, in accordance with this section, refuse to issue process where an application for an apprehended personal violence order is made, unless the application was made by a police officer. (2) An authorised officer refuses to issue process by deciding not to issue a warrant referred to in section 562ZZI or an application notice under Part 6 of the Local Court Act 1982 . (3) An authorised officer may refuse to issue process if the authorised officer is satisfied that the application: a) is frivolous, vexatious, without substance or has no reasonable prospect of success, or b) could be dealt with more appropriately by mediation or other alternative dispute resolution. (4) Unless satisfied that there are compelling reasons for doing so, an authorised officer is not to refuse to issue process if the application discloses allegations of any of the following: a) a personal violence offence, b) an offence under section 545AB, (c) harassment relating to the protected person's race, religion, homosexuality, transgender status, HIV/AIDS infection or disability. (5) In determining whether or not to issue process, the authorised officer must take the following matters into account: a) the nature of the allegations, b) whether the matter is amenable to mediation or other alternative dispute resolution, (c ) whether the parties have previously attempted to resolve the matter by mediation or other means, (d) the availability and accessibility of mediation or other alternative dispute resolution services, (e) the willingness and capacity of each party to resolve the matter otherwise than through an application for an apprehended personal violence order, (f) the relative bargaining powers of the parties, (g) whether the application is in the nature of a cross application, (h) any other matters that the authorised officer considers relevant. (6) If the authorised officer refuses to issue process under this section, the authorised officer must record the reasons for doing so in writing.' 38 Section 562A defines an 'authorised officer' as follows: '"authorised officer" has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002'. The Law Enforcement (Powers and Responsibilities) Act 2002 [LEPRA] defines an 'authorised officer' as follows: '(a) a Magistrate or a Children's Magistrate, or (b) a registrar of a Local Court, or (c) an employee of the Attorney General's Department authorised by the Attorney General as an authorised officer for the purposes of this Act either personally or as the holder of a specified office. ' 39 The volume of requests for AVOs in NSW is significant: A total of 6739 AVOs [and 20,013 ADVOs] were granted in NSW in 2004: 'Apprehended Violence Orders granted in 2004: Number and rate by area of residence', Bureau of Crimes Statistics and Research of NSW. 40 The discretion under Crimes Act Section 562M was intended to filter out complaints lacking merit: In the Second Reading Speech for the Crimes Amendment (Apprehended Violence) Bill, the Hon. J. W. Shaw stated: '[Applications] for APVOs will be subject to a filtering process prior to being listed before a court. Currently, an authorised justice processing applications at court has no discretion to refuse to issue a complaint for an AVO. This has resulted in some complaints for AVOs of a non-domestic nature coming before courts in clearly inappropriate circumstances. The bill will ensure authorised justices have a discretion to refuse to issue a complaint based on information that is frivolous, vexatious, lacking in substance or has no reasonable prospect of success. The exercise of the authorised justice's discretion will be limited and guided … to ensure that genuine applicants for APVOs continue to have access to the courts for protection…' 41 'Discussion Paper 45 (2002) - Apprehended Violence Orders: Part 15A of the Crimes Act', Law Reform Commission of New South Wales, 2002, states, '8.2 Several avenues are open to people seeking advice about AVOs. They can approach a solicitor, the Chamber Magistrate at the local court, a community legal centre or community advocacy group, a women's refuge, the Legal Aid Commission or the police about obtaining an AVO. The police can either apply on the person's behalf, or can provide information about how to apply in person, through the police Domestic Violence Liaison Officer or Victim Support Officer…' The Tribunal's findings and reasons The Tribunal's findings of fact 42 The Tribunal has considered the President's report in full, as well as the written submissions of the Applicant and the Respondent to the Tribunal and the oral submissions made by both parties at the taped Case Conference held by the Tribunal on 25 January 2007. After considering this material, the Tribunal makes the following findings of fact: Since about 2002, Ms Budd has suffered from social phobia and agoraphobia, and associated symptoms including panic attacks, which, for the last few years has lead to her rarely being able to leave her home: psychological report dated 19 February 2006, Dr Hugo Rodriguez. The Applicant receives a disability pension and her son is her carer. Ms Budd and her son have lived for many years in a block of apartments owned by the Land and Housing Corporation in an eastern suburb of Sydney. For a long period she and a neighbour, Mrs Gardiner, who shared a common area in the building, had a problematic relationship. From 2003 to 2006, the Applicant applied for AVOs against Mrs Gardiner: letter from Ms Budd dated October 2006, Attachment 'A' to Respondent's submission filed 13 December 2006. 43 As to the Applicant's claims that Mr Wiseman and/or Waverley Court required her to get a solicitor and/or attend Court in order to apply for AVOs, the Tribunal finds that the relevant facts are as follows: From 2003 to 2006, Ms Budd made approximately 16 AVO complaints through Waverley Local Court, and she made an 'almost identical AVO application' to Kogarah Local Court as she had made to Gosford Local Court: see Mr Wiseman's decision dated 23 March 2006, President's report pages 123-124. On at least some occasions of her seeking an AVO, the Applicant communicated by the Court via the telephone, as opposed to being required to attend the Registry to speak to the authorised officer for issue of process and/or to attend a hearing on the application: See Respondent's submissions dated 13 December 2006. On at least one occasion she was granted an AVO subsequent to telephone communications with the Court: See President's report page 80. On at least one occasion, the Court wrote to Ms Budd to explain to her the legal situation and her options: See President' report, page 56. In late 2005, when she sought an AVO from Kogarah Local Court, the authorised officer, Mr Wiseman refused to issue process on a number of grounds: See President's report pages 123-124 and paragraph 4 above. On 21 December 2005, Mr John Arms, an authorised justice at Gosford Local Court, also refused to issue process for an AVO against Mrs Gardiner giving similar reasons to Mr Wiseman including that Ms Budd's complaint contained no specific details of her complaint: See Respondent' submissions filed 13 December 2006. The Applicant is literate [as evidenced by her many facsimiles to the Board and the Tribunal]. 44 The AVO legislation specifically enables the Court to deal with AVO applications by facsimile: Crimes Act Section 562ZQ(6). If a person requires assistance with applying for an AVO there are several avenues of assistance, apart from the Court, available: 'Discussion Paper 45 (2002) - Apprehended Violence Orders: Part 15A of the Crimes Act', Law Reform Commission of New South Wales, 2002, paragraph 8.2. 45 As to the Applicant's claim that she was required to provide 'unnecessary' paperwork to apply for an AVO, the Tribunal notes that she could give no particulars of this claim. Further, the Tribunal takes notice that the legislation requires some detail to be provided by the applicant before an AVO can be made: Crimes Act Part 15A. This is because before the Court can make an AVO, the applicant for an AVO must satisfy the Court on civil burden of proof that s/he has reasonable grounds to fear and in fact fears personal violence or stalking or intimidation from another sufficient to warrant the making of an APVO. Further, a respondent has a right to know the case to be answered. Does the Applicant suffer a disability within the ADA? 46 The Tribunal has considered the Applicant's evidence as to her alleged disability of social phobia and agoraphobia including from herself, her general practitioner, Dr Liliane Goodman, psychologists, Ms Yvonne Hall and Mr Hugo Rodriguez. The Tribunal is satisfied that Ms Budd suffers from agoraphobia and social phobia and finds that this is a disability within the definition of Section 4 of the ADA: Commissioner v Mooney (No 2) [EOD] [2003] NSWADTAP 67, at paragraph 61. Are the actions of the Magistrates at Waverley Local Court, including Magistrate Carney, in determining AVO related applications, 'Services' within the ADA? 47 The Applicant complained that the Respondent had discriminated against her in the provision of goods and services to her, namely in the provision of the process to have a grant of AVO for her protection. The ADA defines 'services' to include services provided by a public authority, such as by the Attorney General's Department: Section 4 ADA. 48 Even applying a broad definition of 'services' the Tribunal finds that process of a Magistrate hearing and making orders, including for parties to mediate, in respect of AVO related applications, are not 'services' within the ADA. Rather, the Magistrate is acting in a judicial role and it is inappropriate to characterise the process as the provision of a 'service' for the purpose of the ADA: IW v City of Perth (1997) 191 CLR 1, per Brennan CJ and McHugh J. Are the actions of Magistrates at Waverley Local Court, including Magistrate Carney, in determining AVO related applications, covered by judicial immunity? 49 The rule of judicial immunity protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity: Re East & Ors; Ex parte Nguyen [1998] HCA 73, at paragraph 30. The rule of judicial immunity is well established in Australian law: Re East & Ors; Ex parte Nguyen [1998] HCA 73, Fingleton v The Queen [2005] HCA 34 (23 June 2005) and Morcedai's Case. A Magistrate appointed to the Local Courts in NSW is a judicial officer and is covered by the same judicial immunity as a Supreme Court Judge: Judicial Officers Act 1986 Section 3(1)(f) and 44B, and Paramasivam v O'Shane & Ors [2005] FMCA 1686. In NSW the common law judicial immunity has been expressly stated by statute to extend not only to judicial officers when performing judicial duties, but also when they are performing ministerial duties: Judicial Officers Act Section 44A and B. The Tribunal finds that the term 'Ministerial duties' covers actions of a magistrate such as referring a matter to mediation and directing a Court officer to write to an applicant for an AVO and inform him or her of what her or his rights and options are: The Oxford Companion to Law, David M Walker, Clarendon Press, 1980, page 842 defines 'ministerial' as acts requiring the exercise of little or no discretion; see also Fingleton v The Queen [2005] HCA 34 (23 June 2005), where Gleeson CJ at paragraph 35 refers to 'ministerial or administrative acts'. 50 After considering all the evidence, the Tribunal finds that pursuant to Judicial Officers Act Section 44B, Magistrate Carney, and if relevant, other Magistrates, at Waverley Local Court are protected from civil suit in respect of decisions and associated ministerial actions done in respect of the Applicant's applications for an AVO and her request to review the refusal to issue AVO process. 51 Having considered the ADA, and adopting the reasoning as to the Federal anti-discrimination legislation in Re East & Ors; Ex parte Nguyen [1998] HCA 73 at paragraph 30, the Tribunal finds that there is nothing in the ADA to suggest that Parliament intended to override the principle of judicial immunity either at common law or by virtue of the Judicial Officers Act Sections 44A, 44B and 44C. Are the actions of Mr Wiseman exercising the discretion to refuse process under Crimes Section 562M, 'Services' within the ADA? 52 It is necessary to identify with precision what service the alleged discriminator provides: IW v City of Perth (1997) 191 CLR 1, per Brennan CJ and McHugh J in IW v Perth. 53 The Tribunal has considered the following: Crimes Act Part 15A; the purpose of the discretion of the 'authorised officer' to refuse to issue process for an AVO as outlined in the Crimes Amendment (Apprehended Violence) Bill Second Reading Speech, the Hon. J. W. Shaw; and the basis on which the authorised officer may refuse to issue process for an AVO as set out in Crimes Act, Section 562M. The Tribunal notes also that the considerations in Section 562M for refusal to issue process are complex and include balancing the right of the Applicant to be protected against the right of the other party not to have to answer claims which are for example vexatious or vague. The Tribunal is mindful also that while the application for an AVO is assessed on the civil burden of proof, if granted, the other party is liable at criminal law to maximum penalties of 50 penalty units [at present $5500] and/or 2 years imprisonment. 54 The Tribunal notes and adopts the reasoning of Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1. After considering all the evidence, the Tribunal finds that the process by which Mr Wiseman exercised the discretion pursuant to Crimes Act Section 562M to refuse to issue process is not describable as a 'service' that the court provides to applicants for AVOs. Rather, he exercised a discretion to process applications for AVOs for the protection and general benefit of the population of NSW. Is Mr Wiseman covered by the principle of judicial immunity in exercising the discretion to refuse to serve process for the Applicant? 55 Even if the exercise of the discretion in Crimes Act Section 562M is a 'service' within the ADA, the Tribunal finds that Mr Wiseman's refusal to issue service is covered by judicial immunity for the following reasons. 56 It is clear that Mr Wiseman is not a judicial officer: Judicial Officers Act Section 3. However, as a Court officer, if he was performing a judicial act, he would be covered by common law immunity: Wentworth v Wentworth and Others [2001] 52 NSWLR 602; Bradley -v- State of New South Wales [2002] NSWADT 11; Scanlon v Director-General, Department of the Arts, Sport and Recreation [2006] NSWSC 785; and Murphy, Daniel v Family Court of Australia [2002] TASADT 9. 57 As the Respondent correctly stated [submission dated 13 July 2006] it is often problematic to precisely determine what is a judicial power and what is an administrative power: The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361, Windeyer J at paragraph 9; Precision Data Holdings Ltd v. Wills (1992) 173 CLR 167, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; 'Federal Jurisdiction', Adversarial Background Paper 1, The Australian Law Reform Commission, December 1996, Part 1. 58 There are factors which may indicate that the exercise of the discretion under Crimes Act Section 562M is an administrative act rather than a judicial act. First, it may be significant that the discretion given in Section 562M is given to an 'authorised officer' as defined in LEPRA, rather than to an 'authorised officer' as defined in the Judicial Officers Act Section 44C, that is, the definition in the Criminal Procedure Act. This is because although the definition of 'authorised officer' in both statutes is similar, the objects of the said statutes are rather different: LEPRA is a statute relating to police powers and responsibilities, whereas the Criminal Procedure Act relates to the procedure in NSW Courts for criminal proceedings. Secondly, while exercising the discretion involves the finding of facts, the making of value judgments, and the formation of an opinion as to the legal rights and obligations of parties (Precision Data Holdings Ltd v. Wills (1992) 173 CLR 167, paragraph 22), these factors may also be common to the exercise of administrative and legislative power (ibid). 59 On the other hand, the Tribunal notes that the exercise of the discretion under Crimes Act Section 562M has indicia of a judicial act. First, the criteria for exercise of the discretion given by Crimes Act Section 562 are complex, including assessment of the claims and evidence and of the suitability of the matter for mediation. Secondly, if the discretion is exercised, written reasons for the refusal to issue process must be given, as reflected in Mr Wiseman's detailed written decision dated 23 March 2006 [see paragraph 4 above]. Thirdly, exercise of the discretion pursuant to Crimes Act Section 562M not to issue process arguably is the 'final stage of the process': The Queen v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361, per Windeyer J at paragraph 14. 60 However, the Tribunal finds that it is not necessary to determine if Mr Wiseman is covered by common law judicial immunity since the Tribunal finds that in exercising the discretion under Crimes Act Section 562M, he was covered by the extended statutory judicial immunity provided for by Judicial Officers Act Section 44C. 61 The Judicial Officers Act Section 44C expressly extends the common law judicial immunity in NSW to non judicial officers performing the duties of a judicial officer 'including ministerial' duties. Under Crimes Act Section 562M, a Magistrate can be an 'authorised officer'. As noted above, the act of exercising the discretion to refuse to issue process for an AVO application includes a complex weighing of the facts and writing of a decision. The Tribunal finds that the authorised officer exercising the discretion under Crimes Act Section 562M is performing the duty of a judicial officer. Further, the Tribunal finds that even if the exercise of the discretion is not purely judicial, it is sufficiently connected with the exercise of judicial power to attract the immunity conferred by the Judicial Officers Act Section 44C. The Tribunal's Decision as to the application for Dismissal pursuant to Section 102 ADA 62 The Tribunal has carefully considered the Respondent's application to dismiss Ms Budd's complaint under Section 102. The discretion to dismiss a matter under Section 102 of the ADA is exercised cautiously especially when, as here, the application to dismiss was made at a preliminary stage: see Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 (29 June 2004) at paragraphs 41 and 42, Han v NSW Department of Health [2006] NSWADT 113 at paragraph 63, and McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477. 63 However, in this case, the Tribunal has found that the processes in NSW Courts for obtaining AVOs and for refusing to issue process for AVOs are not 'services' within the ADA. Further, the Tribunal has found that the actions of the Magistrates and the authorised officers about whom the Applicant complained are covered by judicial immunity. After considering all the evidence, the Tribunal finds that taking the Applicant's case at its highest, her complaint is misconceived, lacking in substance and cannot succeed. 64 Accordingly, the Tribunal dismisses the claim under Section 102 of the ADA. 65 The complaint is dismissed pursuant to Anti- Discrimination Act 1977, Section 102.
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.
Budd
State of New South Wales
[1992] HCA 44
[2005] FMCA 1686
(1997) 191 CLR 1
[1998] HCA 73
[2006] HCA 14
(1992) 173 CLR 167
(1970) 123 CLR 361
(1992) 173 CLR 349
The complaint is dismissed pursuant to Anti-Discrimination Act 1977, Section 102.