Singh v South Western Sydney Local Health District

Principles governing the exercise of the power to amend a complaint

1. The principles which govern the exercise of the Tribunal's power to amend a complaint have been comprehensively set out in the decision of Principal Member Britton in McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 at paragraph [9]-[12] which I set out below: "[9] Section 103 of the Act gives the Tribunal power to amend a complaint: 103 Tribunal may amend a complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in the proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit." [10] In Zhang v Blinds Pty Limited t/as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s103. The Appeal Panel rejected the proposition that s103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel Chand v Rail Corporation of New South Wales [EOD] (2007) NSWADTAP 54 (Chand) at [37]-[38]. [11] The Appeal Panel in Chand at [38] commented that the relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred. [12] In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]: The Act does not stipulate the matters the Tribunal should take into consideration when exercising its powers to amend a complaint. The factors to be taken into account will vary from case to case and the weighing to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: Whether the proposed amendment falls within one of the grounds for declinature available to the President (s89B(2) and s92(1)(a)). Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. Whether the proposed amendment raises any issue of joinder. Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. Whether if refused/granted, any party might be prejudiced. Whether the party making the application is in default of previous orders.

Should the temporal scope of the complaint be extended?

1. Ms Singh, in the letter from the New South Wales Nurses and Midwives Associate ("the Association") to NCAT on 31 July 2020 states: "In her complaint Ms Singh referred to ongoing discrimination by the respondent from 2018 to 22 October 2019 continue. The Association seeks to amend the complaint to include further acts of discrimination and victimisation by the respondent commencing in or around March 2018 and continuing to June 2020. We attach a detailed chronology of the relevant acts of discrimination and victimisation. Annexure B. The Association submits that the respondent's alleged conduct set out in the chronology constitutes unlawful discrimination in employment on the grounds of carer's responsibilities and victimisation. Moreover, the Association submits that the respondent's conduct constitutes a 'continuing act', or continuing course of conduct, of unlawful discrimination and victimisation over a 2 year period, that is, March 2018 to March 2020."
2. The date referred to above 'June 2020' was amended during oral submissions at the hearing from March 2020 to June 2020 without objection.
3. The letter and annexure was marked 'Exhibit A1' on this application.
4. Ms Moffett, Industrial Officer of the Association, appeared on behalf of Ms Singh at the hearing of this application. She submitted that the Tribunal should exercise a discretion to extend the temporal scope to include the period from March 2018 to June 2020 for these reasons.
5. First, at the time of making the complaints Ms Singh was not legally represented and did not necessarily appreciate some of the conduct predated the date the complaint was made to the board. Further, that some of the conduct continued after 22 October 2019, which she also did not appreciate, as she argues, amounted to continuing acts or continuing course of conduct amounting to unlawful discrimination and victimisation.
6. Ms Moffett drew to my attention the reference in the ADB complaint form to the question 'When did the discrimination or harassment happen?' that Ms Singh wrote 'It began on 2018. I finished on 22 October 2019 - continues'. The answer 'yes' was circled to a question 'Is it still going on in that form?' In support of the application, Ms Moffett said that the temporal scope should be extended submitting that the time and cost of Ms Singh making a second complaint to the Board would be minimised.
7. The respondent opposes the application and filed written submissions (13 August 2020) which were relied upon and supplemented by oral argument at the hearing.
8. First, the discretion to amend a complaint is one that should not be exercised lightly. Should the discretion be exercised, the power to amend a complaint inevitably means that the two tiered complaint handling system established by Part 9 of the Act will be bypassed. There is no power for the Tribunal to amend the complaint to include the period back to March 2018. In that regard the Respondent relies upon s103(2) limiting amendments of complaints to matters that were not within the complaint as investigated by the President. The matters between March 2018 and November 2019 were set out in the complaint that was investigated so they were excluded by s103(2).
9. Second, the President has limited the complaint to the period commencing November 2019. The President may decline a complaint in whole or in part including where part of the complaint of occurred more than 12 months before the making of the complaint (see s89B(2)(b) of the Act). It follows that this decision is not reviewable by the Tribunal (see s89B(4) and Wecker v The Delegate (the Decisionmaker) to the President of the New South Wales Anti-Discrimination Board (2014) NSWCA 372 at [26]).
10. Third, even where the Tribunal has the power to amend the complaint to commence at an earlier time, the discretion should not be exercised. The respondent refers to and relies upon the decision in A Braiding v Charles Sturt University (2015) NSWCATAD 242 at [49]-[50]: "While the power in s103 to amend a complaint is unconfined, its most obvious application is to matters which occur after the complaint has been referred to the Tribunal. An applicant could not have included those matters in the original complaint. Amending a complaint in those circumstances avoids the time and cost involved for an applicant to make a new complaint to the President in circumstances where proceedings are already on foot in the Tribunal. Allegations 5(a) and (b) occurring during the twelve month period covered by the original complaint. Mr Braiding could have raised those matters when he made that complaint. He says he did not do so because he did not have legal advice at the time and he was under pressure because time was running out for him because he had already missed several weeks of the course before lodging the complaint."
11. And at [54]: "The complaint should not be amended to include points 5(a) and (b) for two reasons. Firstly, Mr Braiding could have made those complaints at the time he lodged the original complaints and the university would be prejudiced by the late addition of those matters. Secondly the allegations arise from the same circumstances as Allegations 1 and 2. Those allegations are that the dismissal of the complaints was in breach of the Anti-Discrimination Act. If Mr Braiding substantiates either of those complaints he may be entitled to a remedy under s108. The two events outlined in points 5(a) and (b) leading up to the decision to dismiss the complaints are unlikely to have any material effect on any remedy to which Mr Braiding may be entitled. In those circumstances there is no significant prejudice to Mr Braiding if the complaint is not amended."
12. The respondent says that the same can be said about this application and the Tribunal should refuse to exercise the discretion to include matters that predate those complained of to the Board.
13. In relation to matters that fall after November 2019 until June 2020, the respondent says that the applicant has failed to particularise the additional matters she seeks to agitate occurring after 13 November 2019. The task of the Tribunal is made difficult to determine whether and, if so, to what extent, granting the amendment application will extend the scope of the matters to be determined. There has been no evidence put on to identify the alleged conduct said to amount to carer's discrimination or indeed there has been no particularisation of the conduct said to amount to the same. The respondent says that the application to amend the complaint is not assisted by this lack of particularity.
14. Further, the proposed amendment falls within one of the grounds for declinature available to the President (see s89B(2) and s92(1)). In particular, s89B(2)(a) or s92(1)(a)(ii).

Consideration

1. I have decided not to exercise a discretion to extend the temporal scope to include complaints predating those matters raised to the Board. The conduct and allegations of discrimination in the area of carer's responsibility for the period between April 2018 to November 2018 has not been particularised. Whilst NCAT is not a Tribunal of strict pleadings and should proceed to determine a matter without regard to technicalities or legal forms (s38(4) of the Civil and Administrative Tribunal Act 2013 (NSW)) (NCAT Act), the application to amend a complaint is not assisted by this lack of particularity. Further, I am satisfied that the President investigated the complaint under s89B of the Act and the operation of s89B(2)(b) and (4) means that the President's decision is not reviewable by this Tribunal.
2. I have taken into consideration that the statutory provisions governing the making of a complaint to the President do not require the complaint to particularise the alleged conduct said to amount to a contravention of the Act. The only requirement is that the complaint be in writing and lodged with the President: s89, 89A.
3. Nevertheless, in the context of an application to amend a complaint made at this stage of the proceedings - namely, after a case conference and a medication, and that the matter was listed for final hearing in late August 2020, the extent of the alleged conduct which has been identified, and in some form particularised, is relevant. However, considering the probable prejudice the respondent may suffer given the late amendment and requirement to answer particulars occurring almost 3 years ago, I have decided balancing each of these considerations to not exercise a discretion to amend the complaint concerning matters alleged to have occurred that predate November 2018.
4. Ms Singh could have made the complaints predating November 2018 at the time she lodged the original complaints with the Board. Her failure to do so prejudices the respondent by the late addition of those matters.
5. I am also not satisfied that Ms Singh would be prejudiced by not having the additional complaints added as they are unlikely to have any material effect on any remedy to which Ms Singh may be entitled.

Extending the scope to include matters from November 2019 to June 2020

1. Ms Singh relies upon an eight page chronology which she says outlines the particulars concerning the respondent's conduct which amounts to victimisation and discrimination. Some time was taken during submissions as to which of these particularised events amount to conduct which would meet the definition of both victimisation and discrimination. Counsel for the Respondent referred to a number of entries contained in the chronology which could not amount to a contravention of a provision of the Act and would therefore be excluded pursuant to s89B(2)(a) of the Act in being conduct, if proven, contravening a provision of the Act or the Regulation. For example, some of the alleged conduct relates to a conciliation conference at the Board, a letter passing between the respondent and the NSWNMA and the lodging of a complaint by Ms Singh to the ADB.
2. The Tribunal should not be tasked with the obligation to sift through a lengthy chronology and identify which parts amount to allegations of conduct which may contravene the Act or its Regulation. Due to the lack of specificity in particularisation of the alleged conduct amounting to possible victimisation or discrimination, I decline to exercise a discretion to extend the temporal scope of the complaint as sought by the applicant. I am unable to assess whether it is reasonably arguable that some or all of the alleged conduct the subject of this proposed amendment can be characterised as discrimination or as detriment within the meaning of s50 of the Act. In similar circumstances I am also unable to assess whether it is reasonably arguable that the reason for that conduct was because the applicant made the complaint.
3. The applicant is not prejudiced if this application is not granted to amend the complaint in so far as if the Tribunal were to find the applicant's current complaint to be substantiated, it follows that continuation of that conduct will amount to a contravention of the Act.
4. In similar circumstances to those set out above, the late application to amend the complaint does not assist the applicant and is a further factor I have taken into consideration in deciding not to exercise a discretion to allow the application.
5. The matter will be listed for further directions.

Orders 1. The application to amend the temporal scope of the complaint is refused. 2. The matter is to be listed for further directions.

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: 27 October 2020