Rodgers v State of New South Wales

NCAT Administrative and Equal Opportunity|2024-07-10

Background

Mr Rodgers complained to the President of the Anti-Discrimination Board (ADB) that the Civil and Administrative Tribunal (NCAT) had discriminated against him on the ground of disability. He wrote in the complaint that he has Avoidant Personality Disorder which results in him becoming overwhelmed with anxiety and depression. The initial complaint dated 4 March 2024, was that: I've requested that a GAL is appointed by NCAT to represent me in an upcoming matter. NCAT has failed to respond to that request.
On 12 March 2024, in response to a request by the President of the ADB to provide further details, Mr Rodgers wrote: Request made March 2 2024 Follow up requests on March 4 and 6. NCAT has not responded to the requests and seem to be ignoring it.
The President of the ADB characterised the complaint as alleging discrimination on the ground of disability in the provision of services under s 49M of the Anti-Discrimination Act 1977 (NSW). Section 49M provides that: 49M Provision of goods and services (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.

Principles for determining whether to grant leave for the complaint to be the subject of proceedings

The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In that case Schmidt J: 1. emphasised at [32] that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found at [28] that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . ." and went on to say, at [38] that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

What is a GAL?

Mr Rodgers identifies the allegedly discriminatory treatment as failing to respond to three communications with NCAT requesting that a GAL be appointed to represent him in upcoming proceedings. "GAL" is short for a "guardian ad litem". NCAT Guideline 2 December 2021, "Representatives for people who cannot represent themselves (GALs)" gives the following response to the question "What is a guardian ad litem?" A guardian ad litem is a person who the Tribunal appoints to represent a party who is totally or partly incapable of representing themselves in a Tribunal case. The representative is called a GAL for short. The GAL speaks for the party at all Tribunal hearings and resolution processes such as mediations. The GAL is not a lawyer but may arrange to have a lawyer represent him or her.
A GAL can only represent a party if the Tribunal makes an order to that effect. Section 45(4)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives NCAT a discretion to "appoint a person to act as guardian ad litem for a party".

Why is the Respondent the "State of NSW" and not NCAT?

When referring this matter to NCAT, the President identified the respondent as "State of New South Wales, Department of Communities and Justice (NSW Civil and Administrative Tribunal)". Section 5 of the Anti-Discrimination Act provides that "[t]his Act binds the Crown not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities". Section 5(1) of the Crown Proceedings Act 1988 (NSW) provides for the bringing of civil proceedings against the Crown under the title "State of New South Wales". Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court.
It follows that a person may bring proceedings against the State of New South Wales for alleged breaches of the Anti-Discrimination Act, at least in relation to alleged breaches of sections relating to the provision of goods and services.

Is it apparent that the complaint lacks substance?

For Mr Rodgers' allegations to constitute a breach of s 49M(1)(a), he would have to establish that the respondent provides a service of appointing guardians ad litem for parties and that the respondent has refused to provide that service. A submission to that effect is highly unlikely to succeed.
Firstly, the only way in which a party to proceedings in NCAT can have a GAL appointed to represent them, is if NCAT exercises the statutory function in s 45(3) of the NCAT Act. Under that provision, the Tribunal has a discretion to appoint, or not to appoint, a person to act as guardian ad litem for a party. The Tribunal is not obliged to appoint a guardian ad litem even if a party lacks capacity. Conversely, the Tribunal may appoint a guardian ad litem even if the person concerned opposes such an appointment. Understood in that way, it is highly unlikely that a Tribunal hearing this matter would find that the respondent has refused to provide Mr Rodgers with a "service": see State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [217].
Secondly, when Mr Rodgers complained to the President of the Anti-Discrimination Board, nothing had been refused. The fact that his application under s 45(3) of the NCAT Act for a guardian to be appointed had not been listed for hearing does not amount to a failure or refusal to do something.
Thirdly, even if Mr Rodgers were able to establish that the respondent provides a service of adjudicating on applications for a guardian ad litem to be appointed, members of NCAT hearing such an application are immune from civil liability. Civil liability includes liability under the Anti-Discrimination Act for any act done in the exercise of a Tribunal "function". Clause 4 to Schedule 2 of the NCAT Act provides that: "A member has, in the exercise of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court."
The nature and extent of that immunity was described by Garling J in Singh v Charles [2022] NSWSC 743 at [25] - [27].
It follows that it is apparent that Mr Rodgers' complaint lacks substance.

Orders 1. Under s 96 of the Anti-Discrimination Act 1977 (NSW) leave is refused for the applicant's complaint to be the subject of proceedings I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2024

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