Ryan v Commissioner of Police, NSW Police Force

1. Leave be granted to the applicant to make an application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).
2. The originating application filed on 7 June 2018 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 The applicant applies for leave under s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) to make an application to this Court alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (the DD Act). 2 The applicant, who is a former police officer employed by the Commissioner of Police, as a member of the NSW Police Force, was medically discharged on 17 December 2015. He alleges that the respondent, the Commissioner of Police, NSW Police Force, discriminated against him for the purposes of s 15(2)(a),(b) and/or (d) of the DD Act by revoking his appointment as Leading Senior Constable because of, or for reasons which included, that the applicant had, or was imputed to have, a disability arising from a work related psychological condition (the revocation). The effect of the revocation was to immediately reduce his rate of pay. Upon his medical retirement, the applicant became entitled to a lifetime pension as a member of the Police Superannuation Fund (the Fund), which is calculated by reference to his salary as at the date of discharge. The applicant contends that as a result of the revocation his pension was reduced and he continues to suffer financial loss as a result of the decision and will continue to do so until his death. His wife will also suffer financial loss until her death. 3 On 21 November 2017, the applicant made a complaint to the Australian Human Rights Commission (AHRC) alleging unlawful discrimination on the grounds of disability in his employment. On 11 April 2018, that complaint was terminated under ss 46PF(1)(b) and 46PH(1)(b) of the AHRC Act by a delegate of the AHRC. 4 On 7 June 2018, the applicant commenced proceedings in this Court. Section 46PO(3A)(a) of the AHRC Act provides that leave of this Court is required to make this application. 5 The respondent opposes the grant of leave. Background 6 The factual background to this matter is taken from the submissions of both parties. 7 In 1984 the applicant commenced employment with the NSW Police Force as a Probationary Constable, and on 18 May 1985 was confirmed as a Constable. Consequently, the applicant was a member of the Fund, established by the Police Regulation (Superannuation) Act 1906 (NSW) (PSR Act). 8 From 1990 the applicant was a member of the Forensic Services Group, in particular, the Identification Services Branch. In May 1993, the applicant was promoted to the rank of Senior Constable, and in 2002 he was appointed as a Leading Senior Constable. This carried with it a pay increase and resulted in the applicant's contributions to the Fund being made at that increased pay rate. 9 In an agreement with the Police Association of NSW (the Association) made in 2001, the Commissioner created the role of Leading Senior Constable to provide an incentive for experienced police officers to provide a role in guiding, mentoring and tutoring less experienced police officers. Leading Senior Constable is an appointment to a particular status within the NSW Police Force. Leading Senior Constables hold the rank of Constable and the grade of Senior Constable. It is not, however, designated as a rank or grade under the Police Act 1990 (NSW) (see s 12(1)) or the Police Regulation 2015 (NSW) (see cl 5). 10 The applicant's appointment as Leading Senior Constable was revoked, effective from 15 January 2015. At that time the applicant's salary reverted to that of an officer of the rank and grade of Senior Constable Level 6. 11 Superintendent Paul Glinn, then Commander of the Identification Services Branch, revoked the applicant's appointment as a Leading Senior Constable which he said was in accordance with the Leading Senior Constable Guidelines on the basis that the applicant could not fulfil the inherent requirements of the particular work. 12 On 31 May 2009 the applicant was involved in an on duty motor vehicle accident. As a result, he was absent from work from 1 June 2009 until his medical discharge, which was due to physical and psychological injuries arising from the accident. Although certified fit for restricted duties in about August 2011 the applicant never returned to work. The applicant received sick pay from 2 June 2009, throughout the period on sick leave. However, from the date of the revocation that pay was at the reduced rate. 13 On medical retirement the applicant became eligible for a lifetime pension, at a rate determined by the applicant's salary at the time of his retirement: s 10 PSR Act. 14 The applicant sought internal review of the revocation decision within the NSW Police Force, with the assistance of the Association. In January 2016, the final request for internal review of the decision was rejected. 15 On 21 November 2017, having sought legal advice, the applicant lodged a complaint with the AHRC alleging unlawful discrimination contrary to ss 5 and 6 of the DD Act, on the basis of discrimination in employment relying on s 15(2)(a), (b) and/or (d) of the DD Act. The act said to constitute the unlawful discrimination is the revocation. 16 On about 1 February 2018, a delegate of the AHRC foreshadowed an intention to terminate the complaint without inquiry under s 46PF(1)(b) of the AHRC Act on the basis the complaint was lodged more than 12 months after the alleged act. By letter dated 1 March 2018, the applicant made a submission against that approach. 17 By way of Notice of Termination dated 11 April 2018, the delegate terminated the complaint on the basis of a "substantial delay in bringing the matter forward". As for the reasons for the delay the delegate observed that "it remains unclear why the advocates he consulted at the time did not provide the applicant with information about his rights under the [DD Act] or assist him to make a complaint". As to the "merits" of the complaint, the delegate referred to s 21A of the DD Act and observed: ... Section 21A of the DDA says that it will not be unlawful to discriminate against a person on the ground of disability if the discrimination relates to particular work and because of their disability, the person would be unable to carry out the inherent requirements of the particular work. The information you provided indicates that the NSW Police Force, after reviewing information including neuropsychologist and psychologist reports, formed the view that Mr Ryan was unable to perform the inherent requirements of the LSC Role. The documents you provided indicate that the NSW Police Force was of the view that it had exhausted all reasonable efforts to rehabilitate Mr Ryan to his pre-injury duties prior to revoking his LSC status and that it had received independent medical advice that confirmed Mr Ryan could not return to his pre-injury duties. Conversely, there is no information currently before the Commission to indicate that Mr Ryan was fit to perform the particular work of a LSC at the time he was demoted or would be able to do so, if reasonable accommodation was provided. I note the psychologist report you provided indicates that Mr Ryan was fit to perform 'suitable duties' in December 2013, but does not elaborate what the suitable duties would have entailed. 18 The delegate stated that, whilst she accepted that the applicant had "a genuine and on-going sense of grievance about the decision" that was the subject of his complaint, after considering the factors set out in the decision, she decided that it was "appropriate to terminate Mr Ryan's complaint because it was lodged more than 12 months after the alleged acts, omissions and practices occurred". 19 The applicant read two affidavits, sworn 13 May 2019 and 17 July 2019, in support of the application for leave. The affidavits amongst other things addressed the issue of the delay in instituting the proceedings. Principles in relation to the grant of leave 20 Section 46PO(3A) was introduced into the AHRC Act, effective from 13 April 2017. Section 46PO is relevantly in the following terms (with notes omitted): 46PO Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. …. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (3A) The application must not be made unless: (a) the court concerned grants leave to make the application; or (b) the complaint was terminated under paragraph 46PH(1)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b). (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re‑employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. … (5) In the case of a representative proceeding under Part IVA of the Federal Court of Australia Act 1976, subsection (4) of this section applies as if a reference to an applicant included a reference to each person who is a group member (within the meaning of Part IVA of the Federal Court of Australia Act 1976). (6) The court concerned may, if it thinks fit, grant an interim injunction pending the determination of the proceedings. (7) The court concerned may discharge or vary any order made under this section (including an injunction granted under subsection (6)). (8) The court concerned cannot, as a condition of granting an interim injunction, require a person to give an undertaking as to damages. 21 In James v WorkPower Inc [2018] FCA 2083 (James v WorkPower Inc), Mortimer J considered the history of the provision and the context in which it now appears. Her Honour concluded at [37]-[38]: 37. I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38. There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. 22 As Mortimer J concluded at [39]: It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules. 23 Those principles from James v WorkPower Inc were recently applied in Pathmanathan v St John of God Healthcare Inc [2019] FCA 1460. While the parties disagree as to the result of the application of those principles to this case, they nonetheless agree that they are the principles to be applied. Consideration 24 The applicant submitted that in the context of these proceedings, there are three matters of particular significance in the assessment of whether leave should be granted to make the application being: (1) the nature of the claim and the ongoing loss being suffered by the applicant as a result of the allegedly discriminatory act; (2) the existence of a reasonably arguable claim for final relief; and (3) the delay in making the complaint to the AHRC. The applicant also argued that this matter raises issues of general importance and ongoing significance. In a nutshell the respondent contends that the arguments it put answers each of the legal issues raised. The respondent opposed leave on the basis that the applicant's claims suffer from a number of deficiencies which mean his case is not reasonably arguable: first, the argument proceeds on an erroneous premise that there is an employment relationship between the Commissioner and the applicant; second, that the Commissioner made the revocation pursuant to and in accordance with an Award; and third, if there was discrimination, the inherent requirements defence in s 21A of the DD Act would apply. The respondent, in opposition to the grant of leave relied significantly on the delay in bringing the proceedings. 25 In reply, the applicant took issue with the merit of legal submission advanced by the respondent but contended that the respondent's submission highlighted the broader ramifications and general importance of this matter. 26 Turning to the considerations in James v WorkPower Inc, referred to at paragraph [21] above. Leaving aside for the moment the question of delay, the other considerations referred to in James v WorkPower Inc at [38], when applied to this matter, all weigh in favour of the grant of leave. It is uncontroversial that the subject matter of the complaint is important to the applicant in particular, but also to the respondent; that while the alleged discrimination is one act, it has ongoing, and lifelong financial ramifications for the applicant, and perhaps his wife; that the principal basis on which the AHRC terminated the complaint was that it was lodged over 12 months after the alleged act; and that the matters raised have broader ramifications than the individual case. 27 As to the consideration of how thoroughly the AHRC dealt with the merits of the complaint, which might thoroughly answer the complaint or reflect that it is not reasonably arguable, in this case it is plain the merits of the complaint were not the subject of any detailed consideration. As the applicant submitted, the AHRC "scarcely" dealt with the merits of the complaint. The brief passage of the reasons, recited above at [17], is the extent of that consideration. I note that the AHRC relied upon s 21A which is also in issue as the respondent contends that it has no application in this case. Moreover, this matter was terminated at the stage of addressing the question of whether to conduct an inquiry. Any comment about the merits is also to be viewed in that context. 28 It is in that context that it is appropriate to consider the question of the undoubted delay. As noted above, the respondent relied heavily on this fact in opposing the grant of leave.