Griffin v Commissioner of Police, NSW Police and anor [2005] NSWADT 92

CITATION: Griffin v Commissioner of Police, NSW Police and anor [2005] NSWADT 92 DIVISION: Equal Opportunity Division APPLICANT Edward James Griffin PARTIES: FIRST RESPONDENT Commissioner of Police, NSW Police Service SECOND RESPONDENT Director General, NSW Department of Housing FILE NUMBER: 031154 HEARING DATES: 25/01/2005 SUBMISSIONS CLOSED: 08/03/2005 DATE OF DECISION: 29/04/2005

BEFORE: Rees N - Judicial Member; Gill M - Non Judicial Member; Hayes E - Non Judicial Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 CASES CITED: Commissioner of Police v Orr [2001] NSWADTAP 16 at [34] to [36] State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 APPLICANT In Person REPRESENTATION: FIRST RESPONDENT E Brus, Barrister SECOND RESPONDENT L Karp, Barrister ORDERS: 1. Complaint dismissed; 2. Costs reserved; 3. The first and second respondents to file and serve any application for costs within 28 days from the date of the publication of this decision.

REASONS FOR DECISION Introduction 1 In this case the applicant (Mr Edward Griffin) has claimed that officers and employees of the first respondent (the Commissioner of Police, NSW Police) and the second respondent (the Director-General, NSW Department of Housing) discriminated against him on the ground of disability in relation to an incident which took place at the applicant's home at Leura on 16 February 2002. 2 On 19 August 2002 the applicant lodged a complaint of discrimination on the ground of disability against both respondents with the President of the Anti-Discrimination Board ('the ADB'). As the complaint was lodged more than six months after the date of the alleged contraventions of the Anti-Discrimination Act 1977 (NSW) ('the Act'), the President exercised his discretion to accept the complaint out of time (see s 89(4) of the Act). 3 On 7 November 2003 the President, acting pursuant to s 94(1) of the Act, referred the complaint to the Tribunal for an inquiry because the President had concluded that the complaint was unable to be resolved by conciliation. The parties then filed Points of Claim and Points of Defence in compliance with directions made by the Tribunal. The applicant's Points of Claim were signed by his solicitor, Mr Mitchell. Both respondents have been legally represented at all stages of the Tribunal's inquiry. On 8 October 2004 the applicant filed a statement (with numerous attachments) in which he set out his version of the incident which occurred at Leura on 16 February 2002. The first respondent also filed statements from two witnesses. Background to the applications for summary dismissal pursuant to s 111 4 Following the exchange of 'pleadings' both respondents filed applications that the complaint be dismissed pursuant to s 111 of the Act. In effect they were applications that the complaint be summarily dismissed. The respondents' applications for dismissal pursuant to s 111 of the Act were initially set down for hearing at Sydney on 22 November 2004. The legal representatives for the parties were advised of this date and of the nature of the applications during a case conference which took place on 25 August 2004. 5 On 22 November 2004 both respondents appeared before the Tribunal represented by counsel: Ms Brus appeared for the first respondent and Mr Karp appeared for the second respondent. The applicant's solicitor, Mr Mitchell, did not appear in person but after being contacted by the Registrar's staff he participated in the Tribunal hearing by telephone. The applicant, Mr Griffin, was not present and he was unable to be contacted to participate by telephone. As Mr Mitchell informed the Tribunal that he had not advised Mr Griffin of the date for the s 111 dismissal applications and had received no instructions to appear for Mr Griffin in his absence, those applications were adjourned to 25 January 2005. Both Ms Brus and Mr Karp successfully sought orders for the costs of the day against Mr Mitchell personally. 6 On 25 January 2005 the first and second respondents were again represented by Ms Brus and Mr Karp respectively. Mr Bilinsky (solicitor) appeared as the agent for Mr Mitchell to advise that as Mr Mitchell had been unable to obtain instructions from the applicant he (Mr Mitchell) sought to withdraw from the proceedings. Both Ms Brus and Mr Karp sought to proceed with their applications for dismissal pursuant to s 111 of the Act. 7 As it was unclear whether the applicant had been advised by Mr Mitchell that the s 111 applications were to be heard on 25 January 2005, Mr Mitchell was again contacted by telephone and he participated in the hearing on that basis. Mr Mitchell informed the Tribunal whilst the applicant had attended his office earlier that morning, he had subsequently departed. Mr Mitchell was not sure whether the applicant knew that the applications to have his complaint summarily dismissed were being heard by the Tribunal on that day. Subsequent attempts by the Tribunal to contact the applicant by telephone were not successful. 8 Mr Mitchell informed the Tribunal that despite his best endeavours he had no recent instructions to act on behalf of the applicant and he sought to withdraw from the proceedings. Whilst the Tribunal was of the view that it was a matter for Mr Mitchell whether he would continue to act, his withdrawal was noted. 9 Consequently, the Tribunal determined that it would be unfair to the applicant to proceed in his absence as he was no longer legally represented and the Tribunal was not satisfied that he had been given proper notice of the applications that his complaint be summarily dismissed. This was the second occasion upon which the Tribunal found it necessary to adjourn the hearing of the summary dismissal applications because the applicant was not in attendance and because the Tribunal was not satisfied that he had been given reasonable notice of those applications and, hence, provided with the opportunity to oppose them. 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. The substance of the s 111 summary dismissal applications 13 Section 111(1) of the Act permits the Tribunal to dismiss a complaint at any stage of an inquiry when satisfied that "a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The first respondent submitted that the applicant's complaint should be dismissed because it was "misconceived" or "lacking in substance". Whilst the second respondent sought to rely upon all of the dismissal grounds in s 111(1), the clear import of those submissions also was that the complaint was "misconceived" or "lacking in substance". 14 In making its decision in relation to these applications the Tribunal has taken into consideration the report from the President of the ADB, the 'pleadings' filed by the parties, the statement of the applicant which was filed on 8 October 2004, the written submissions filed by both the first and second respondents in support of their s 111 applications and the documents filed by the applicant on 3 and 16 February 2005. 15 The applicant's claim was set out in his original complaint to the President of the ADB dated 16 August 2002. Further detail was provided in the Points of Claim prepared by his former solicitor. The applicant claimed in those documents that he suffers from impaired vision, impaired hearing, heart disease and hypertension. He also claimed that prior to 16 February 2002 he had owned a dog named "Lassie". He said that "he was advised to keep a dog in order to assist him in light of his disabilities". 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. 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. 21 There is a considerable body of case law concerning the circumstances in which a complaint may be summarily dismissed pursuant to s 111 of the Act. Many of those cases are usefully summarised in Commissioner of Police v Orr [2001] NSWADTAP 16 at [34] to [36]. We adopt the views expressed in that case that the power to summarily dismiss a complaint pursuant to s 111 should be exercised with exceptional caution and that an applicant must be given every reasonable opportunity to explain the content of his or her complaint and to produce evidence in support of it. We believe that those strictures have been followed in this case. 22 There are numerous cases in which the meaning of the terms "misconceived" and "lacking in substance" have been considered. In keeping with statements made by Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 when dealing with similar provisions in Victorian anti-discrimination legislation, we propose to proceed on the basis that, in broad terms, "misconceived" means a "misunderstanding of legal principle" and "lacking in substance" means "an untenable proposition of law or fact". 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. 25 The applications by the first and second respondents that the complaint be dismissed pursuant to s 111 of the Act must be upheld. Counsel for both respondents submitted that costs should be reserved if their applications were successful. We intend to make this order. Both respondents should be given 28 days to make an application for costs. In the event that no applications are made there will be no order as to costs. 26 We make the following orders: 1. Complaint dismissed 2. Costs reserved 3. The first and second respondents to file and serve any application for costs within 28 days of the date of publication of this decision.