Han v NSW Department of Health & anor [2006] NSWADT 179

CITATION: Han v NSW Department of Health & anor [2006] NSWADT 179

DIVISION: Equal Opportunity Division

APPLICANT Seng Kuwang Han PARTIES: FIRST RESPONDENT Karen Thomas SECOND RESPONDENT NSW Department of Health

FILE NUMBER: 051149

HEARING DATES: 1/05/2006

SUBMISSIONS CLOSED: 05/01/2006

EXTEMPORE DECISION DATE: 05/01/2006

DATE OF DECISION: 06/13/2006

BEFORE: Smyth M - Judicial Member

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

CASES CITED: Xu v South West Area Health Service (2006) NSW ADT 3

APPLICANT No appearance REPRESENTATION: RESPONDENT K Thomas, legal officer, for self and the Department of Health

ORDERS: Application for adjournment is refused; Application for leave is refused

REASONS FOR DECISION 1 On 1 May 2006 the Tribunal refused Mr Han's application for leave to proceed with his victimisation complaint against Karen Thomas and the NSW Health Department. The NSW Health Department has requested written reasons for that decision. These are the reasons in answer to that request. 2 On 31 August 2005 the President of the Anti-Discrimination Board received a complaint from Mr Han alleging victimisation among other matters. 3 The President of the Board declined that complaint of victimisation under s 92 of the Anti-Discrimination Act 1977 (the Act) as misconceived and/or lacking in substance. Mr Han requested that the matter be referred to this Tribunal under s 93A of the Act. The President then referred the matter to this Tribunal in December 2005. 4 Mr Han's victimisation complaint concerned a letter written by Ms Thomas, Principal Solicitor, Prosecutions/Litigation of the New South Wales Health Department to Mr Han dated 21 July 2005. The letter was written in the course of proceedings regarding a separate discrimination complaint that Mr Han had before the Equal Opportunity Division of this Tribunal. 5 Ms Thomas's letter, in evidence before me, included some comments made before the Tribunal regarding a summons, referred to Mr Han's request for shift allocation rosters, attached them and made some comments about them. Ms Thomas's letter then stated The documents reveal that you were treated favourably in relation to rostering, and that there is no evidence that you were discriminated against in the rostering because of your race or disability. Before any further costs are incurred in this matter, the respondent asks that you withdraw your application before the Tribunal. Please note that no costs or penalties will be imposed or sought against you by the respondent if you do so. 6 The letter then went on to deal with various documents sought by the Applicant in that matter. 7 Mr Han's victimisation complaint is that this letter demands that he withdraw his complaint before the Tribunal otherwise the Department "will impose costs or unspecified penalties against him". In his letter of complaint Mr Han stated that the Department of Health and Ms Thomas "are engaged in predatory oppression in the continued victimisation of this Applicant which extended to include threats of undisclosed penalties implying persecution of me to cause unknown harm if I refused to desist. This is a conditional threat and is unacceptable victimisation of me…." 8 Mr Han is required to obtain the Tribunal's permission under s 96 of the Act before proceeding with a complaint that the President of the Anti-Discrimination Board has declined as lacking in substance and or misconceived. 9 Section 96 (1) states (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. Application for adjournment 10 By email to the Tribunal dated 28 April 2006 Mr Han requested an adjournment of the matter. He also requested that the Tribunal "return a section 76 of the Administrative Decisions Tribunal Act 1997 verdict that the NSW Department of Health is guilty of disability discrimination". Under s 76 the Tribunal is able to determine proceedings on the papers without holding a hearing if it appears that the issues can be adequately determined in the absence of the parties. 11 The Applicant's application for leave has been before the Tribunal on two previous occasions and was adjourned on both occasions at the Applicant's request. The Applicant did not appear on either occasion. 12 At a directions hearing on 12 April 2006 the Tribunal reallocated the matter to a different Tribunal member at the request of the Applicant and relisted the matter for 1 May 2006. There is nothing in the Applicant's emailed request for an adjournment, received by the Tribunal on 28 April 2006, that indicated an actual inability to attend, for example, that he is sick or unable to physically attend the Tribunal. 13 It seems the request for the adjournment is more related to the Applicant's concern about whether he was adequately prepared to go ahead on 1 May 2006. In particular, the Applicant stated that he didn't receive any explanation of the Tribunal's decisions regarding representations he had made, but assumed from an email that came from the Tribunal Registry on 19 April 2006 that the hearing has been adjourned to 1 May 2006. 14 In his email the Applicant also noted that he was not informed of the subject matter and was only directed on 19 April 2006 to present himself at this hearing on 1 May 2006. He raised some questions about whether there are issues about a disability discrimination complaint that he has in addition to this complaint, and stated that he has not had an opportunity to respond to disputed claims about that. He stated that he found it "tough to follow the Tribunal's seemingly arbitrary, sudden proceeding rulings and unexplained switched directions" and referred to a number of other matters in his application. 15 The Respondents opposed the adjournment and in particular raised their concern about the delay in the matter given the previous adjournments. The Respondents submitted that there was no proper reason as to why an adjournment was required or a proper basis for granting one. 16 In my view there is no proper basis to grant an adjournment. There has been a reasonable period of time for the Applicant to respond and the matter has been adjourned on two previous occasions. Taking into account the matters raised by the Applicant in his email of 28 April 2006 and the Respondents' submissions I am not prepared to grant an adjournment. Application for leave under s 96 17 Having determined not to grant the adjournment the application for leave under s 96 was heard in the absence of the Applicant. 18 The Tribunal has dealt with matters under s 96 previously and set out the approach to be taken. In Xu v South West Area Health Service (2006) NSW ADT 3 at 18 the Tribunal referred to s 96 and stated at [18] The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision, and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. The substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence or evidence from which an inference can be drawn linking the alleged treatment with the ground of discrimination. 19 If this matter proceeded the onus would be on the Applicant to prove that victimisation has occurred. 20 While the President's decision to decline a complaint is a relevant matter for the Tribunal to consider, the Tribunal's role is not to assess the adequacy or objectivity of the President's decision and the Tribunal does not have the task of conducting a merits review of the President's decision. Consequently, the Tribunal must focus on the merits of Mr Han's complaint and decide whether, despite the fact that the President has declined his complaint as misconceived and/or lacking in substance, there is a substantial reason for allowing the complaint to proceed. 21 The complaint is one of victimisation. That would require the Tribunal consider the elements of victimisation set out in s 50 of the Act. 22 Section 50 states (1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 23 Consequently, to make out the complaint, the Applicant must be able to prove that the Respondents caused the Applicant to undergo or experience something; the Applicant must have suffered a consequential detriment; the detriment must have occurred on one of the grounds set out in s 50; and it must appear that the applicant did one of the things in s 50 (a) to (d). Did the Respondents cause the Applicant to undergo or experience something and did the Applicant suffer a consequential detriment? 24 In this instance the Applicant complains of the letter written by Ms Thomas dated 21 July 2005. It is a letter written in the context of litigation. The letter is not outside the normal boundaries of those kinds of letters and there is nothing in that letter that could be considered extremely inflammatory or unusual in this kind of litigation. 25 In my view it does not constitute a detriment to be informed, in the way he has in the discussion contained in that letter, about the Respondents' views about his complaint and their attitude to any potential cost implications.. In this instance there is not evidence of "detriment" of the level or kind required to substantiate his complaint. 26 The onus is on the Applicant to show a reasonable prospect of success or some other substantial reason for the complaint to proceed. In my view, in these circumstances, for the reasons outlined, that test is not met and the application for leave is refused. 27 As mentioned above Mr Han also requested that the Tribunal "return a s 76 of the Administrative Decisions Tribunal Act 1997 verdict that the NSW Department of Health is guilty of disability discrimination". The proceedings before me concerned Mr Han's application for leave to proceed with his complaint of victimisation. They did not concern a complaint of disability discrimination. Consequently I am unable to grant his request for a decision under s 76 on the papers regarding disability discrimination. Orders Application for an adjournment is refused. Application for leave is refused.