Shrayer v Anti-Discrimination Board of NSW

Anti-Discrimination Act 1977 LEGISLATION CITED : Uniform Civil Procedure Rules Supreme Court Act 1970

Izabela Shrayer (Plaintiff) PARTIES : President, Anti-Discrimination Board of NSW (First defendant) Director General, Department of Community Services (Second defendant) Health Care Complaints Commission (Third defendant)

COUNSEL : M Nagy (First, Second & Third defendants)

SOLICITORS : Plaintiff in person IV Knight, Crown Solicitor (First, Second & Third defendants)

LOWER COURT JURISDICTION : Anti-Discrimination Board of New South Wales

LOWER COURT JUDICIAL OFFICER : Stepan Kerkyasharian, President

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30059/08 Izabela Shrayer v Anti-Discrimination Board of NSW & Ors

JUDGMENT 1 HIS HONOUR: These proceedings arise out of events that took place in 1993 ("the events"). The complaint of the plaintiff is that in July of that year she was assaulted by her son in a context of domestic violence. It appears that she thereafter lost the custody of her son and also suffered psychological problems. 2 Subsequent to the events, she has continued to pursue relief in respect of them. In the course of that pursuit, she claims to have suffered systemic discrimination at the hands of various bodies to whom she has looked to for assistance. 3 She made a complaint to the Anti-Discrimination Board of New South Wales ("the Board") on 20 October 2006. The complaint contains the following: "What would you like to happen to sort out this complaint? I want justice. I want my husband punished and I want the Jewish welfare punished for their conspiracy to take my son off me." 4 It appears that relief was sought against the Department of Community Services, New South Wales Police Service, New South Wales Ombudsman, Community Services Commissioner, Health Care Complaints Commission, Australian Jewish Welfare Association, Dr Tosman and Dr Blume. 5 The Board was empowered to decline her complaint pursuant to s 89B(2)(b) of the Anti-Discrimination Act 1977 ("the ADA"), inter alia, in those cases where the conduct concerned occurred more than twelve months before the making of the complaint. 6 Following the making of the complaint, she was contacted by the Board by letters dated 24 October 2006 and 31 October 2006. The second of the two letters put questions to her and called upon her for explanation and answers to the same. This letter brought to her attention the power had under that provision and called upon her to tell the Board why her complaint should be accepted out of time. She responded to that letter by her own letter dated 17 January 2007. This was a lengthy and detailed letter. 7 It may be interpolated at this stage that this correspondence saw her being given a reasonable opportunity to put her case and of her taking advantage of that opportunity. 8 By letter dated 7 February 2007, the plaintiff was advised that the Board had declined to entertain her complaint. By reason of the provisions of s89B(4) thereof, that decision is not reviewable in the Administrative Decisions Tribunal ("the Tribunal"). In specified circumstances rights of challenge to the Tribunal are available in other cases. 9 Such decision brought the plaintiff to this Court. The first originating process was filed on 20 May 2008. Since then, the process has been amended on a number of occasions. The current process is an Amended Summons filed on 1 August 2008. 10 The hearing took place on 1 October 2008. The plaintiff appeared in person. The first defendant has filed a submitting appearance. The second and third defendants appeared to oppose the granting of relief. Hereafter, I shall refer to these three defendants as the defendants. The defendants were represented by counsel. The Court was informed that the other defendants have not participated in the conduct of the proceedings. 11 The defendants did not object to the plaintiff having the assistance of an interpreter. He participated in the presentation of the plaintiff's case. 12 The plaintiff placed before the Court a number of affidavits. In addition to this material, the defendants did not object to the plaintiff tendering additional material being a bundle of documents received as Exhibit A. The material did not advance her claim for relief in these proceedings. Largely, it directed itself to what had happened during and since the events. 13 Despite the inadmissibility of much of the evidence, the defendants did not take any technical objection and left it to the Court to have regard only to that which was of relevance to these proceedings. 14 The defendants also put affidavit evidence before the Court. This material dealt with the process before the Board and other matters including prejudice. 15 The purport of the plaintiff's process appears to be to seek leave to appeal pursuant to Pt 50 of the Uniform Civil Procedure Rules. The ground for the seeking of relief appears to be an alleged failure on the part of the President to properly exercise his responsibility. 16 Under the headings "Orders Sought" and "Appeal Grounds", inter alia, the following appears: "4. The first is that my son have an opportunity to realise that both me and he were victims of the crime of his father (my ex-husband) and wrong decisions by various people and agencies. The second is that people who made those decisions should acknowledge and be held responsible for their actions." "1. I would like to challenge the decision of the President Anti-Discrimination Board, who did not properly exercise his responsibility, and I and my parents ask for an order that he do it properly at this time." 17 Section 89B of the ADA empowers the President to determine whether or not a complaint made to the President is to be accepted or declined in whole or in part. It also, inter alia, permits him to decline a complaint if the whole or part of the conduct complained of occurred more than twelve months before the making of the complaint (in this case, there was no issue that such conduct did fall outside that period). It appears that this provision has not been the subject of past judicial consideration. Past decisions relate to a different provision (see, inter alia, McAuliffe v Puplick & Anor (1996) EOC 92 - 800). 18 The effect of this provision is to confer a discretion upon the President to decline a complaint in the prescribed circumstances. In the exercise of that discretion the President should have regard to the relevant circumstances of the particular case under consideration. Relevant circumstances can be expected to include at least matters such as the delay involved in the bringing of the complaint, the explanation offered for that delay and any prejudice flowing from the delay. Considerations of futility are now a basis for the declining of a complaint (see, inter alia, (a) of s 89B(2)). 19 There is no appeal to this Court from the decision of the President. The plaintiff has erroneously looked to the provisions of Pt 50 of the Uniform Civil Procedure Rules. Those provisions have no application to such a decision. 20 In those circumstances, the defendants chose to approach the proceedings as an application for judicial review pursuant to the Supreme Court Act 1970. The court may grant such relief, inter alia, where there is error of law on the face of the record or there has been jurisdictional error. The granting of such relief is discretionary. 21 The plaintiff does not appear to have embraced this approach. She orally confirmed at the commencement of the hearing that she wished to appeal from the decision and was seeking leave to do so from this Court. 22 Despite attempts to direct the attention of the plaintiff to matters relevant to these proceedings, she was unable to give the Court any assistance concerning them. Her presentation was focussed on an attempt to give a lengthy and detailed account of her version of what had taken place during the thirteen year period that had preceded the making of her complaint. This was not of assistance to the Court. She persisted with merely either repeating or giving a different version of the substantial documentary material contained in her affidavits and the exhibit. She seemed to be unwilling to accept that this Court was not the forum for hearing her complaint on the merits. 23 What was being sought by the plaintiff was doomed to failure. This Court does not have the jurisdiction to allow her to bring an appeal against the decision of the President. She did not address the judicial review considerations. She did not identify any error of law on the face of the record or jurisdictional error. I add that it does not seem to me from the material that either are present in this case. 24 Leaving aside any consideration of merits, there were persuasive considerations to support the decision of the President. The involvement of the second defendant in her affairs had ceased about thirteen years prior to the making of her complaint. In the case of the third defendant, the relevant period was in the order of eight to nine years. There is evidence of actual prejudice put forward on behalf of the second and third defendants. The circumstances of the case give rise to significant presumptive prejudice. 25 Although it has not been argued before me, it may be observed that it would appear to have been the intention of the legislature to make any such decision by the President as final and beyond challenge. 26 There is also the consideration of the discretionary nature of relief by way of judicial review. I merely mention this for completeness. Even if there had been a demonstration of error of law or jurisdictional error (which is not the position in this case). It seems to me that this is not a case in which the discretion should be exercised in favour of the plaintiff. For present purposes, it is unnecessary to elaborate further on this matter as it was also not a subject of argument between the parties. 27 Whilst what may have happened to the plaintiff is of great significance to her and has engendered strong emotion, it is necessary for her to appreciate that it is not the function of this Court to resolve whatever problems she may have arising out of the events. Her approach to this Court has been an exercise in futility. 28 For completeness, I should mention certain other information that was elicited from the plaintiff (not without difficulty) during the course of the hearing. Her son is a man of about 28 years of age. It seems that he may have been both married and divorced. Contact between the plaintiff and her son appears to have ceased in about July 1993. She is unaware of his place of abode, but thinks that he lives in Sydney. 29 By reason of what has been earlier said, the proceedings are not maintainable against any of the defendants. Accordingly, the proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibit may be returned.

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