Appeal Panel - Internal CITATION: Griffin v Commissioner of Police, NSW Police & Anor (EOD) [2006] NSWADTAP 16 APPELLANT Edward James Griffin PARTIES: FIRST RESPONDENT Commissioner of Police, NSW Police SECOND RESPONDENT Director-General, NSW Department of Housing FILE NUMBER: 059032 HEARING DATES: On the papers SUBMISSIONS CLOSED: 01/30/2006 DATE OF DECISION: 04/20/2006 BEFORE: Hennessy N - Magistrate (Deputy President); Connelly J - Judicial Member ; Lowe A - Non Judicial Member CATCHWORDS: opportunity to be heard - procedural fairness MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 031154 DATE OF DECISION UNDER APPEAL: 04/29/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Hopkins v Smethwick Board of Health (1890) 24 QBD 712 CASES CITED: Kioa v West (1985) 159 CLR 550 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 APPELLANT In person REPRESENTATION: FIRST RESPONDENT E Brus, counsel SECOND RESPONDENT L Karp, counsel ORDERS: 1. The decision of the Tribunal made on 29 April 2005 is affirmed; 2. The appeal is dismissed REASONS FOR DECISION Introduction 1 This is an appeal against a decision of the Tribunal made on 29 April 2005, summarily dismissing Mr Griffin's complaint of disability discrimination against the NSW Police and the Department of Housing. The Tribunal dismissed Mr Griffin's complaint under the former s 111 of the Anti-Discrimination Act 1977 (AD Act). That provisions stated that: Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. 2 The appeal against the Tribunal's decision was initially listed for hearing on 11 August 2005. Mr Griffin provided the Appeal Panel with a letter from his doctor saying that he was due to have surgery and would be unfit to attend a hearing until late in October. The hearing was re-scheduled for 2 November 2005. On 12 October 2005, the Tribunal received another letter from Mr Griffin's doctor saying that he would be unable to travel until January 2006. Given Mr Griffin's unavailability to attend a hearing, he was invited to participate by telephone. He did not accept that offer and the Presiding Member formed the view that the issues for determination could be adequately determined in the absence of the parties under s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act). The determination of that question is an "interlocutory function" which may be performed by one presidential judicial member under s 24A of the ADT Act. 3 Mr Griffin was not legally represented in these proceedings. Each of the respondents was represented by counsel. The discrimination complaint 4 Mr Griffin says he suffers from impaired vision, impaired hearing, heart disease and hypertension. He says he had a therapy dog named "Lassie" who he was advised to keep in order to assist him in light of his disabilities. The complaint of disability discrimination related to an incident which occurred at Mr Griffin's home on 16 February 2002. The circumstances of that incident are set out in the Tribunal's decision at [16] to [18]: 16 The applicant claimed that a police officer and a RSPCA official visited him in his Department of Housing premises in Leura on 16 February 2002. A week prior to this event he had received a letter from the Department of Housing concerning rental arrears. According to the applicant, the police officer and the RSPCA official informed him that "Department of Housing had notified them about Lassie and that they had come to put her down". 17 The applicant claimed that he then denied the police officer and the RSPCA official entry to his premises in order to make telephone enquiries with the RSPCA. Whilst he was making those enquiries the applicant alleged that three police officers forcibly entered his premises and assaulted him. According to the applicant he experienced the symptoms of a heart attack whilst he was being restrained by a police officer. He claimed that despite requests he was denied the opportunity to take his medication which was nearby. 18 The applicant was then taken in a paddy wagon to Katoomba Police Station where he was charged with obstructing and hindering police as well as offences relating to cruelty to his dog. According to materials provided to the President of the ADB by both the applicant and the first respondent, the applicant was convicted of those offences and fined. Tribunal's decision 5 In its Reasons for Decision the Tribunal set out the procedural history of this matter. (See [4] to [12].) Mr Griffin initially had a solicitor acting for him, Mr Mitchell. The applications for summary dismissal were set down for hearing on 22 November 2004, but Mr Mitchell did not advise Mr Griffin of that date and had received no instructions to appear for him. Consequently, the Tribunal adjourned the s 111 applications to 25 January 2005. Both counsel for the respondents successfully obtained an order for costs against Mr Mitchell personally. On 25 January 2005, Mr Bilinsky, solicitor, appeared as agent for Mr Mitchell and told the Tribunal that Mr Mitchell had been unable to obtain instructions from the applicant and was withdrawing from the proceedings. The Tribunal contacted Mr Mitchell by phone and was told that Mr Griffin had attended his office that morning but had left. Mr Mitchell said that he was not sure whether Mr Griffin knew that the applications to have his complaint dismissed were being heard by the Tribunal on that day. The Tribunal decided to adjourn the hearing for a second time. At [10] – [12] of the Reasons for Decision, the Tribunal said that: 10 In order to strike a fair and proper balance between the requirements that the applicant be granted procedural fairness – in this case, the opportunity to participate in the hearing – and that proceedings be conducted with expedition and economy, the Tribunal decided that it would exercise its statutory power to determine this case on the basis of written submissions filed by the parties (see s 73(5)(c) Administrative Decisions Tribunal Act 1997 (NSW)). Neither Ms Brus nor Mr Karp opposed this manner of dealing with their applications. Both counsel had filed written submissions in support of their applications and both indicated that they were content to rely upon those submissions. 11 In order to ensure that the applicant had an opportunity to file written submissions in opposition to the summary dismissal applications, and in order to ensure that he also had the opportunity to object to the proposal that those applications be determined on the basis of written submissions only, the Tribunal made a number of directions which were designed to give the applicant appropriate notice of the applications, copies of the respondents' documents and the chance to respond to the substance of the applications. 12 The Registrar provided the applicant with the directed notifications and documents by mail on 27 January 2005. The applicant filed documents in response on 3 February 2005 and on 16 February 2005. Neither respondent availed himself of the opportunity provided by the directions made on 25 January 2005 to file material in response to the applicant's submissions. 6 Following the receipt of written submissions from Mr Griffin, the Tribunal handed down its decision dismissing Mr Griffin's complaint as both misconceived and lacking in substance. The crux of the Tribunal's reasoning is set out in [23] and [24] of its Reasons for Decision: 23 We are satisfied that the complaint is both misconceived and lacking in substance. The complaint is misconceived because the applicant has misunderstood the nature of the prohibitions in the Act against discrimination on the ground of disability. The applicant appears to have proceeded on the basis that because he is a person with numerous disabilities and because he claims that he was mistreated by police officers at the behest of the second respondent, both the first and second respondents contravened the Act by discriminating against him on the ground of disability. The Act requires more however. Even if the alleged mistreatment occurred it will only amount to a contravention of the Act if it can be proved that this conduct occurred because of the applicant's disabilities. 24 The complaint is lacking in substance because even if the applicant's misapprehension of legal principle is put to one side, the complaint is based on an untenable proposition of fact. The applicant has not been able to point to any evidence which would permit the Tribunal to find that employees and officers of the first and second respondent treated the applicant as he claims they did because of his disabilities. In the absence of evidence that the alleged mistreatment occurred because of the applicant's disabilities the complaint is based upon an untenable proposition in fact. In other words, it is lacking in substance. Appeal Panel's jurisdiction 7 Under s 113(2) of the ADT Act, an appeal may be made on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. Mr Griffin appealed on questions of law but did not indicate on the Notice of Appeal whether or not he sought leave for the appeal to be extended to the merits of the Tribunal's decision. In the absence of any application for leave, we have assumed that Mr Griffin's appeal is confined to questions of law. Grounds of Appeal 8 On the basis of Mr Griffin's Notice of Appeal and written submissions we can glean the following grounds of appeal: a) that he was not given notice of the hearing - if he had known that the hearing was to take place on that day, he would have made every effort to attend; b) he was denied procedural fairness at the Tribunal hearing because he was not given an opportunity to present information, ask witnesses questions and argue his case; and c) that the Tribunal admitted hearsay evidence. Notice of the hearing 9 According to Mr Griffin, if he had known that there was a hearing scheduled for on 25 January 2005 he would have made every effort to attend. Mr Mitchell told the Tribunal on that day that he was not sure whether Mr Griffin knew that the applications to summarily dismiss his complaint were listed for hearing. Given that the hearing had already been adjourned on one occasion, the Tribunal decided, subject to any submissions to the contrary from Mr Griffin, to require evidence and argument to be presented in writing and not to hear any oral evidence or argument. (See s 73(5)(g) of the Administrative Decisions Tribunal Act 1997.) Mr Griffin was invited to provide submissions both on that proposal and on the substantive issues. He did so on 3rd and 16th of February 2005. 10 The Tribunal is subject to the rules of natural justice, or procedural fairness: s 73(2) of the ADT Act. One aspect of the hearing rule of procedural fairness is that parties be given reasonable notice of the time, date and location of the hearing. (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715.) Section 138 of the ADT Act states that a notice or a document may be given to, or served on, a person by either "delivering it to them personally, or leaving it at, or by sending it by pre-paid post to, the residential or business address of the person last known to the person serving the document." 11 While it may be the case that Mr Griffin was not personally given notice of the hearing, notice was given to his legal representative. In any event, the hearing of the s 111 applications did not proceed on that day. Instead, the Tribunal decided to determine the matter in the absence of any oral evidence or argument. The relevant question is not whether the notice rule has been breached but whether the manner in which the Tribunal dealt with the applications involved a breach of the hearing rule. Hearing rule 12 Another aspect of the rules of procedural fairness is the hearing rule. That rule requires that a decision maker hear a person before making a decision affecting their interests. (Kioa v West (1985) 159 CLR 550.) The rule finds statutory expression in s 73(4)(c) of the ADT Act which states that the Tribunal is to take such measures as are reasonably practicable: c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 13 There is no requirement under the ADT Act for an oral hearing. A principle consistently adopted by this Tribunal in relation to applications for summary dismissal under the AD Act, is that the applicant's evidence should be taken "at its highest". (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].) That means accepting that all the factual material that the applicant has alleged is true and determining whether he or she could possibly succeed on the basis of that evidence. That is the approach that the Tribunal took in this case. That is apparent from its reasoning in [19] in relation to NSW Police and [20] in relation to the Department of Housing: 19 The substance of the applicant's complaint against the first respondent appears to be that he is a person with many disabilities and that he was mistreated by police officers when they visited him at his home on 16 February 2002. He has not identified a connection between those disabilities and the alleged mistreatment in any of the documents that have been filed with the Tribunal. Consequently, even if the complaint of police mistreatment is correct, which is denied by the first respondent, it is impossible to fathom how the applicant may prove his complaint that officers or employees of the first respondent discriminated against him on the ground of his disabilities. 20 The substance of the applicant's complaint against the second respondent is his assertion that the second respondent caused the police officer and the RSPCA official to attend his premises on 16 February 2002 to make enquiries about the dog "Lassie". Even if that allegation is correct, which is denied by the second respondent, the applicant has not identified any evidence which establishes a link between his disabilities and the conduct of the second respondent. 14 Mr Griffin was given a reasonable opportunity to make submissions about the Tribunal's proposal not to hear oral evidence or argument. He was also given a reasonable opportunity to respond to the respondents' applications that his complaint be summarily dismissed. Because the Tribunal accepted Mr Griffin's evidence "at its highest" he was not denied procedural fairness by having the matter determined on the basis of the written material. There was no need for Mr Griffin to cross-examine the respondents' witnesses because it was Mr Griffin's evidence, not the evidence of the respondents' witnesses, that was the basis for the Tribunal's decision. Admission of hearsay evidence 15 We are unable to tell from Mr Griffin's submissions, what evidence he says was admitted by the Tribunal despite it being "hearsay". As we have said, the Tribunal accepted Mr Griffin's factual evidence. On the basis of that evidence it was satisfied that the complaint was misconceived and lacking in substance. Costs 16 Neither respondent applied for a costs order. There is no order as to costs. Order 1. The decision of the Tribunal made on 29 April 2005 is affirmed. 2. The appeal is dismissed. 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.