Wright v State of NSW

DEPUTY PRESIDENT: 1The decision is that I would dismiss any part of your complaint, Mr Wright, that relies on the actual decision or order that has been made but not on the other parts of your complaint. And as to what happens in terms of the IRC or the Tribunal hearing first or second, that will have to be a matter that is addressed at a later date. 2If I can just go through very briefly. This is an application from the Commissioner of Police to dismiss a complaint made by Mr Wright for want of jurisdiction or, alternatively, under s 102 of the Anti-Discrimination Act. Q. Could I just ask you, Ms Eastman, you are now not relying on 102? A. EASTMAN: I am relying on 102. Q HER HONOUR: For any other reason? A. EASTMAN: Not for any other reason. My difficulty is that your Honour's questions to Senior Constable Wright changed the subject matter of what our application dealt with and we had no notice of that prior to coming today. Q. HER HONOUR: So there's nothing left for 102 really on the recast A. EASTMAN: But I don't know what your Honour is going to say is going to be left in terms of what else there might be and that's what I tried to endeavour to deal with understanding, notwithstanding what's in the subject matter of the President's report, what's now said to be the characterisation of the claim which in our view is not consistent with what's in the subject matter of the President's report. Q. HER HONOUR: All right, thank you. I accept the characterisation that Mr Wright gave of his complaint today and that is as set out in the respondent's submission. There are two incidents: The first incident is that on 24 May 2012, Senior Constable Wright was rostered to perform duty between 8am and 6pm. As part of his duties that day he had assisted a fellow officer transport a prisoner from Griffith to Junee and returned the same day. This return trip took approximately five hours. Some time between 5.15 on 24 May 2013 after returning to the Griffith Police Station, Senior Constable Wright took off his appointments belt which he said weighed some 6.5 kilos. Around 5.15pm on 24 May, Senior Constable Johansen, team leader, told Senior Constable Wright to resume his appointments. Sergeant Clark subsequently directed Senior Constable Wright to resume his appointments. The applicant does not deny that he did not follow either of those directions. At approximately 5.52pm on 24 May 2013, Senior Constable Wright then left the Griffith Police Station in his civilian clothes. 3The matter was subsequently investigated as a result of these investigations. On 28 September, Senior Constable Wright was served with a notice under subs 173(5) of the Police Act 1990 inviting him to show cause why reviewable action should not be taken against him in the form of a disciplinary transfer. For the purposes of these proceedings, the notice related to allegedly disobeying directions on 24 May 2012 to place his appointments back on when his shift had not been completed. 4On 7 November 2012, Superintendent McKenna made an order reviewable under the Police Act s 173(2) that Senior Constable Wright be subject to reviewable action in the form of a disciplinary transfer to Lake Illawarra Local Area Command. Under s 173(8) of the Police Act, the order did not take effect for a minimum of twenty-one days. On 28 November, Senior Constable Wright made an application under s 174 of the Police Act for review by the Industrial Relations Commission of New South Wales of the order made by Superintendent McKenna. 5I will just then go to s 173. Section 173 of the Police Act gives the Commissioner of Police certain powers to take action with respect to a police officer who engages in misconduct. That provision distinguishes between nonreviewable action and more serious reviewable action. Only reviewable action may be reviewed by the Industrial Relations Commission. The significant subsection in this case is s 173(9) which provides that, "no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section and no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section." 6The applicant has made a complaint to the Anti-Discrimination Board about various events, including the events of 24 May, and the manner in which that incident was investigated. Mr Wright has clarified today that his complaint does not include the decision of the Commissioner to subject him to a disciplinary transfer. That is not conduct which he alleges is a breach of the AntiDiscrimination Act. In relation to the other two matters, he said that the requirement to put back on his appointments belt is a requirement which would lead to indirect discrimination on the ground of his disability in the terms and conditions of his employment, or by subjecting him to a detriment. The second complaint is about the manner in which this incident was investigated. Mr Wright said that that constitutes victimisation under s 50 of the Anti-Discrimination Act. The brief particulars of that are the fact that the matter was, in his view, a breach of the guidelines, that the findings were sustained, and that he was found to have engaged in misconduct and/or unsatisfactory performance. The question is whether or not this Tribunal has jurisdiction under 173(9) to entertain this complaint at all. Section 173(9) has two parts. Section 173(9)(b) talks of an appeal lying to any tribunal in connection with any decision. The complaint to the Anti-Discrimination Board and its referral to the Tribunal is not an appeal in the sense of that word in that provision. Consequently, in order for the Tribunal to lack jurisdiction, it would have to come within 173(9)(a). 7In the decision of Reid v Frost in the Industrial Relations Commission of NSW [2013] NSWCA 161 7 June 2013, the Court of Appeal rejected a ground of appeal which stated that a non-reviewable warning notice given under s 173 of the Police Act 1990 should not have been reviewed by the Industrial Relations Commission. In that case, Boland J at first instance considered whether the Commissioner of Police's reliance on matters of complaint referred to in the warning notice were well-founded. Macfarlan J held at paras 69 and 70 that, "Boland J did not in my view act contrary to s 173 by considering whether there was a sound basis for the giving of the warning notice. That section is concerned with challenges by judicial review or otherwise to the warning notice itself. It does not in my view prevent consideration, as here, of the reasonableness of the warning notice in the context of a subsequent examination of events leading up to and allegedly justifying the removal of a police officer under s 181D. The alternative of simply assuming that the warning notice was justified would unfairly prevent an officer who was subsequently removed from the police force arguing that the giving of the warning notice was unreasonable and that the matters to which it referred should not have been used by the Commissioner in deciding to remove the officer from the Police Force." 8On the basis of this reasoning, if the applicant's challenge in this Tribunal had been to the disciplinary action itself, then s 173(9) would have prevented any consideration of that matter. As Mr Wright has clarified that his complaint is not to that disciplinary action, there is no need to consider that matter, but if Mr Wright were to put that forward as part of his complaint, the Tribunal has no jurisdiction to consider it. 9The respondent's argument was that if the tribunal had no jurisdiction to review or consider the order or decision itself then because the Industrial Relations Commission was also considering the same subject matter, this Tribunal should not also consider it. Ms Eastman for the respondent pointed to p 75 of the President's report which sets out the application Mr Wright made to the Industrial Relations Commission and filed on 28 November 2012. In that application, Mr Wright refers to disobedience of orders made in contravention of the Anti-Discrimination Act, claims that he has not been afforded due process in terms of the location of the disciplinary transfer, says that the respondent failed to properly consider submissions made by the applicant, and failed to properly consider the work, health and safety implications for the applicant in wearing his appointment belt for a five hour drive. 10Ms Eastman's point is that these matters are the very subject matter of the complaints to the Tribunal. While the subject matter in terms of the factual substratum is the same, the questions for the Tribunal are different in each case. For the IRC the question is whether or not the order itself is unjust, unfair or unreasonable, whereas for the Tribunal the question is whether those matters constitute a breach of the Anti-Discrimination Act. 11While I understand that it would not be in the public interest for these matters to be heard at the same time, they do involve separate questions, and there is nothing in s 173 of the Police Act or elsewhere which would suggest that the Tribunal should be deprived of its jurisdiction to determine whether an act which is not the making of an order or a decision under 173 constitutes a breach of the Anti-Discrimination Act. I also, as I have said, accept Ms Eastman's submission that having the matter dealt with at the same time in the Industrial Relations Commission would not be in the public interest, but that remains a matter to be resolved. 12The alternative submission was that under s 102 the Tribunal should dismiss this application for any other reason. The reason given was that no further action should be taken in relation to the complaint. This was part of the respondent's written submissions. Section 102 does not give the Tribunal power to dismiss a complaint under s 92A(v). While the Tribunal has power to dismiss a complaint because "for any other reason no further action should be taken in respect of the complaint or part of the complaint," in my view, any other reason means any reason other than those listed in s 92A(iii), (iv), (v), (vi) and (vii). 13Consequently, there is no basis in s 102 for dismissal, except Ms Eastman did mention one other possible ground and that is that the complaint had been investigated by the Ombudsman and that it was not in the public interest for multiple sets of proceedings on the same subject matter to be on foot at the same time. As I have said, the issues for the Industrial Relations Commission and for this Tribunal are separate issues. Just as the Tribunal is not considering the lawfulness or the fairness or justness of the decision or order, so the IRC is not considering whether or not discrete events on 24 May and later constitute a breach of the Anti-Discrimination Act. 14For those reasons the application is dismissed but in one way it only is dismissed because you re-framed your complaint, Mr Wright. We should make some directions then about the future conduct and you might like to - I think you said it was your preference for this matter to go first, but whether the IRC is willing to put your application on hold there, I do not know. APPLICANT: Next before the Industrial Relations Commission on 28 February where directions will be set from that date. Directions couldn't be set on I think it was 4 February because of the issue of the outstanding Tribunal determination. HER HONOUR: I can tell you that the decision is imminent so hopefully before the 28th. APPLICANT: Your Honour, could I be heard further on costs in regards to what's been determined? HER HONOUR: Yes. APPLICANT: Thank you. Just in relation to what your Honour said in regards to the application, again it's my submission that although I have clarified my complaint somewhat, my complaint has never been that a discrete breach of the Anti-Discrimination Act was occasioned by the implementation of the 173 order. That was never my - unless I have been misconstrued, I don't believe I've ever tried to make that submission. I've made that quite clear in my submissions. HER HONOUR: Well I don't know if you did. EASTMAN: Page 12, the second paragraph makes it abundantly clear that the subject matter of this complaint was the 173 order. APPLICANT: Page 12? EASTMAN: You say it's para 74, p 23. Despite the emphasis - you say "the actual order factors little in my complaints. The extent to which it factors is a detriment for the purposes of the AD Act." APPLICANT: Only. EASTMAN: A detriment is a breach of the Act, that was my understanding. That's why I asked you to clarify what you meant. There's nothing else it could be. It's a detriment under s 50 or it's a detriment under-- APPLICANT: Yes, but my submission was in a sense - and if it please I'll stand corrected in that regard. My complaint has always been that this contravention of the Act was in regards to the circumstances of 24 May 2012. The detriment which flows on it may only just occur on that particular date but detriment that flows on from what occurs as a result of what occurs on that day. That's why I haven't argued that it is a discrete complaint of its own. It is a detriment for the purposes of what first occurred on 24 May. That's what I believe I've made quite clear. It's just your Honour in regards to my submissions which I - my submissions on costs, I make those from p 27 of my submissions and it refers to s 60. I rely on a number of points under s 60(3)(a) and onwards. I'd like to refer in particular to the case of AT v Commissioner of Police from the Supreme Court, NSW Court of Appeal, sorry, 4 June 2010 which talks about a costs issue. HER HONOUR: AT did you say? APPLICANT: AT. HER HONOUR: You referred to it in your submissions? APPLICANT: No, I haven't, I'm sorry I haven't because I only came across this case last night. It's AT v Commissioner of Police NSW [2010] NSWCA 131, 4 June 2010. In relation to that case, it refers to what was in the old Act as a test of fairness. The new Act now refers specifically to special circumstances. My submission would be that the way the Court of Appeal construed fairness and special circumstances is anything different but together and in that case costs were awarded to the applicant. HER HONOUR: You filed this on 21 November last year so the old costs were also going to apply, so it's going to be the fair fair is what you've got to hang your hat on. Even though we've got a new Act now, your complaint was lodged before 1 January 2014 so the old costs rule s 88 in the ADT Act will apply, just to clarify that. APPLICANT: Okay, thank you, your Honour. HER HONOUR: AT did you say? APPLICANT: Yes. HER HONOUR: What were the circumstances there? APPLICANT: In fact in that case it would be my submission that that makes my argument even stronger on this occasion now, although I note that the respondent only put the application on. My costs are only in relation to today's expenses for me being able to attend here because, as the Tribunal will know, I live in a remote area of New South Wales and I have to fly basically to get here, otherwise it takes me a three day round trip to be here. A full day of travel, it's about a 1400 kilometre round drive, so flying is probably the most expedient and cheapest way of getting here. In regards to the Court of Appeal, it deal with that question of fairness and I've referred the Tribunal - I'm sorry, I've only brought one copy. That was just simply my difficulty with being able to actually have copies available. At para 32 the Court of Appeal referred to the respondent being a State agency was required to act as a model litigant. This is an issue that I put in my submissions and I have attached that as I think it was GW6. It does indicate that's not to say the Commissioner was not entitled to assist that statutory procedures comply with (as said), but it goes on in para 33 to say that "that approach does not diminish the force of the general principle that each part should bear its own costs. A principle applicable at both instances, first instance and before the Appeal Panel." It indicates that "although an order varying the general rule may be made only if the relevant criteria is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order." HER HONOUR: This is Basten in - okay. APPLICANT: Yes. I rely really on that in regards to my application. HER HONOUR: What do you say - there's still got to be a reason. What's the reason for the costs? APPLICANT: Well your Honour, I've come prepared to address s 60 rather than the old s 88. HER HONOUR: That's all right. APPLICANT: I think the points in my submission will probably fairly correlate. I've indicated in my submissions that where a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, now although I concede that the respondent is entitled to make this application, it puts me at a particular disadvantage because of my location and an application before this Tribunal in this location puts me at a particular disadvantage to anyone else who may well be in similar circumstances. Because I live in such a remote area of New South Wales, the travelling costs and all the expenses of being able to get here and so forth are far more great for myself rather than anyone else. The other subsections I do rely on are particularly subs (3)(c), "the relative strengths of the claims made by each party including whether a party has made a claim that has no tenable basis in fact or law." My submission would be that on your Honour's determination already, that would be a case that there's no tenable basis in fact or law. The final point I make would be in 3E, whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. Your Honour has determined already in my favour in regards to - sorry, determined against the respondent in regards to its application and I'd submit that it's on that basis that it was lacking in substance. And G, "any other matter that the Tribunal considers relevant." My personal circumstances in needing to be here for this kind of matter with the seriousness of it, I just ask for simply my reasonable costs in attending here are just met. It is quite considerable for me to have to fly. I'm not able to simply catch transport here, I have to catch a flight from Griffith and back in the same day. I have to take a day off. I've prepared an outline of my costs if your Honour would accept that. I'm in your Honour's hands. I don't want to hand it up just-- HER HONOUR: No. Look, I don't need to hear from Ms Eastman. I'm not going to give you costs and there's a couple of reasons. Well one is this was a legitimate application in relation to jurisdiction. It wasn't clear to me at the beginning of this hearing that you were not relying on the order or decision itself and it was your concession on that basis that led me to dismissing the application. Also I don't think they've done anything to unnecessarily disadvantage you and it can't be said that the application had no tenable basis in fact or law, was frivolous or vexatious. Obviously you've been partially successful in defending the application but that doesn't mean that - you know, just because you win that doesn't mean you get costs. I appreciate the distance that you have to travel and the costs that that involves. Can I just say that's not something that lies at the feet of the respondent in this case and it may be that in future if you want to participate by phone, that's an option for you. That would have been fine in this case for you to have done that, especially since you did such a detailed written submission. I know you feel like you've done a better job probably if you're here, but that is always an option. But it's a very - when they say a low hurdle, you still have to satisfy those very high considerations in s 88 about untenable, no basis and a disadvantage. They've merely brought an application, you've made a concession about part of it which has meant that it's disappeared and you've been successful in relation to part of it. But yes, we don't order costs here very often. I can either put it down for a case conference or make some directions now. Any preference? APPLICANT: I ask the Tribunal to make directions today. EASTMAN: I need to get some instructions as to whether or not the Commissioner might appeal this interlocutory order and what approach he wants to take in relation to the matter, so-- HER HONOUR: All right, let's set it down. EASTMAN: --it's probably not appropriate to make directions at this point till I've got those instructions. Can I just for the record correct what I've said about two sets of Industrial Relations proceedings. There's one set with two issues and there's been a bifurcation in terms of how it's been dealt with, so initially dealt with, put on hold pending this Tribunal's decisions in relation to the seven complaints, and then it's been revived in more recent times. As your Honour might be aware, under the Police Act a disciplinary action doesn't take effect until after the IRC. That's a very compelling reason for the IRC matter to be heard at the earliest opportunity. There's already been a significant delay. It's not in either of the parties' interests for a disciplinary matter if it's to take effect for it to take effect, so I anticipate that the Commissioner will give instructions that the Industrial Commission matter be heard first before any further proceeding occurs in this jurisdiction, but I'll just need to get instructions as to whether or not the Commissioner wants to deal with this jurisdictional issue any further. That may or may not be the case but I'll just need to get those instructions. I don't want to be in the position of agreeing to directions for the timetabling of this matter if the Commissioner forms a view that it's a matter of importance that on this particular issue needs to go further. HER HONOUR: All right. We're looking at - the 18th today, so just a few weeks before we have a case conference. Have you got one on 19 March? APPLICANT: It may be the case, your Honour. I know that there was-- HER HONOUR: 9.30, that sound right? APPLICANT: My understanding, yes. HER HONOUR: 13/1117, is that this one? Yes, so it's already set down. EASTMAN: Apparently that date was made depending on what might happen with this application, so it's already there. HER HONOUR: Do you want to keep that then? So note case conference 9.30 Wednesday 19 March. APPLICANT: Your Honour, can I just ask a question? HER HONOUR: Yes. APPLICANT: The respondent has already flagged the other possibility of an appeal against your decision-- EASTMAN: I haven't said that, I've said that I need to take some instructions as to whether or not the Commissioner might wish to consider appeal. I haven't flagged that there might be an appeal. That's just not correct, it's not what I've said. APPLICANT: I'm sorry, I'll withdraw what I say. I just indicate that that was my understanding of what was being said. The practical effect of it - where I was coming to is that if appeal is to be done, I'm unclear procedurally how - there's a transcript of today's proceedings? HER HONOUR: Yes, you could ask for - you can go to the counter now if you like and ask for written reasons for the decision and we'll get the transcript. Regardless of whether anybody's appealing or not, you're entitled to get that. APPLICANT: Yes, okay. It's not ordinarily the case that a decision will be published in regards to today? HER HONOUR: If you ask for written reasons, sometimes we do, sometimes we don't. We won't publish it unless you ask for written reasons. You'll just get the transcript or sometimes we put it into a decision and publish it. That's a flexible thing. APPLICANT: That needs to be made through the registry you say, your Honour, is it? HER HONOUR: It's really my decision whether I think it's worthwhile putting it up or not. APPLICANT: Well can I just ask - as the applicant I'd ask for a written decision be published. HER HONOUR: In order to do that you need to first ask for written reasons at the counter. 15Stood over to case conference on Wednesday 19 March 2014 at 9.30 am. 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: 31 March 2014