CITATION: Xu v Sydney West Area Health Service [2006] NSWADT 3 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Shan Shan Xu RESPONDENT Sydney West Area Health Service FILE NUMBER: 051061 HEARING DATES: 01/09/05 SUBMISSIONS CLOSED: 09/01/2005 DATE OF DECISION: 01/09/2006 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Application for leave to proceed MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) LEGISLATION CITED : Interpretation Act 1987 Legal Profession Act 2004 Racial Discrimination Act 1975 (Cth) Sex Discrimination Act 1984 (Cth) Supreme Court Act 1970 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 An v Nichigo Press Pty Ltd [2005] NSW ADT 164 Awadallah v CPA Australia [2004] FCA 768 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 CASES CITED: Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 Rana v University of South Australia [2004] FCA 559 Spellson v George (1992) 26 NSWLR 666Ugur v NSW Police Service [2005] FCA 48 Wickstead v Browne (1992) 30 NSWLR 1 Yo Han Chung v University of Sydney [2002] FCA 106 APPLICANT In person REPRESENTATION: RESPONDENT K Eastman, counsel ORDERS: Leave is refused. REASONS FOR DECISION Introduction 1 Ms Xu was charged with a serious criminal offence and was admitted to the Bunya Unit at Cumberland Hospital on 6 June 2003 as a psychiatric inpatient. She remained in that Unit until February 2004. The Bunya Unit is a medium security forensic unit. Ms Xu says that on 12th February 2004, staff at the Bunya Unit discriminated against her on the ground of disability (depression) by refusing to allow her to make phone calls to her solicitor and refusing, for several months, to give her money to purchase new contact lenses. On 21 July 2004, Ms Xu complained to the Anti-Discrimination Board about this conduct. The President of the Board declined the complaint as "lacking in substance" and referred the complaint to the Tribunal. The letter referring the complaint is dated 2 May 2005. That was the date on which amendments to the Anti-Discrimination Act 1977 (ADA) came into force. One of those amendments requires Ms Xu to obtain the Tribunal's permission before proceeding with a complaint that the President of the Anti-Discrimination Board has declined as lacking in substance. Because the referral letter is dated on the same date that the amendments came into force, there is a preliminary question as to whether Ms Xu needs the Tribunal's permission before the complaint can be heard and determined. Preliminary issue 2 Pursuant to s 24 of the Interpretation Act 1987, the amendments are deemed to have commenced at the beginning of 2 May 2005. From that time, the new s 93A of the Act became the only source of the President's power to refer Ms Xu's complaint to the Tribunal. If the President referred the complaint under s 93A, s 96 requires the Tribunal to give leave before the complaint may proceed. Section 96(1) provides that: 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. 3 As the President referred the complaint on the day the amendments came into effect, s 96 applies. The savings and transitional provisions are consistent with that conclusion. For those reasons, the complaint is subject to the new provisions and leave is required. Approach to determining leave under section 96 4 In An v Nichigo Press Pty Ltd [2005] NSW ADT 164, the Tribunal set out an approach to determining whether or not leave should be granted. Regrettably, the Tribunal did not have the benefit of legal argument about the operation of section 96 and the approach to be taken in determining leave to proceed. In this case, the Tribunal had the benefit of detailed written and oral submissions from experienced counsel for the respondent. In general, I agree with the legal principles expressed in those submissions although they have not been adopted in their entirety. Ms Xu did not have the benefit of legal representation. 5 In determining the approach to take, the Tribunal should examine: -drafting history and intention of the Parliament; -other complementary legislation; and -the legal principles developed by other Courts and Tribunals in analogous circumstances. Drafting history and intention of parliament 6 The Second Reading speech for the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (the Amendment Act) does not deal specifically with the requirement for the Tribunal's discretion to grant leave when the matter has been referred by the President pursuant to section 93A. However, in that speech the Attorney-General states that the Amendment Act is the Government's first response to the New South Wales Law Reform Commission's Review of the Act, as set out in Report No. 92 -Review of the Anti-Discrimination Act 1997 (NSW) (the LRC Report). The Minister states, by general proclamation, that the Bill is an attempt to "streamline and improve the processes of review of the President's decisions by the Administrative Decisions Tribunal." (The Attorney-General, Mr Bob Debus, 'Second reading speech: Anti-Discrimination Amendment (Miscellaneous Provisions) Bill', NSW Legislative Assembly Hansard, 16 September 2004 at p 1.) 7 The LRC Report did not recommend that leave should be required before certain complaints declined by the President can proceed in the Tribunal. However, the Law Reform Commission did address, in general terms, the need for the Tribunal to be accessible and efficient once complaints have been referred to it. The LRC Report identified problems associated with delay, duplication and inconsistency between the Act and the Administrative Decisions Tribunal Act 1997 (ADT Act) and the lack of accessibility to the Tribunal. (See Chapter 9, Law Reform Commission of New South Wales, Report 92 -Review of the Anti-Discrimination Act 1977 (NSW).) 8 The amendments have sought to address some of the problems that the Law Reform Commission identified. Those amendments included broadening the President's powers to decline a complaint (section 92), providing greater flexibility to the complaint- handling process (for example section 89B), giving the President wider powers to require relevant information (section 90B) and requiring the referral of complaints where the complaint has not been otherwise resolved within 18 months of its lodgement (section 93B). It can be gleaned from the historical context of the amendments, that the purpose of the new section 96 is to provide the Tribunal with greater power to prevent complaints that are unmeritorious from proceeding to hearing. Complementary legislation 9 It is important to take an approach to applications for leave which is consistent with other complementary legislation. Of particular relevance is s 347 of the Legal Profession Act 2004 which places certain obligations on lawyers when commencing claims for damages. That provision states that: A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. 10 It is arguable that this provision does not apply to complaints heard by the Equal Opportunity Division of the Tribunal because the Tribunal's jurisdiction is triggered by the President referring a complaint to the Tribunal, not by the filing of a claim directly with the Tribunal. Furthermore, the provision only applies where there is a claim for damages. While damages are usually claimed by complainants alleging a breach of the ADA, that is not invariably the case. Furthermore s 347 does not apply to unrepresented applicants. Nevertheless, the requirement is intended to afford some protection for respondents from unmeritorious claims for damages. Section 96(1) of the ADA reflects a similar intention. Approach taken by courts in analogous circumstances 11 Several provisions analogous to the Tribunal's power to grant leave under s 96 of the ADA exist in State and Federal legislation. The respondent drew the Tribunal's attention to numerous examples. Of particular relevance are s 101 of the Supreme Court Act 1970 and s 24 (1A) of Federal Court of Australia Act 1976 (Cth). 12 Section 101(2)(e) of the Supreme Court Act 1970 provides that: "An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an interlocutory judgment or order . . ." An order granting or dismissing an application for summary judgment is an interlocutory order: Wickstead v Browne (1992) 30 NSWLR 1 at 11. The High Court has pointed out that the requirement for leave to appeal is designed to operate as a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350 at 359 per Deane and Gaudron JJ. Similarly the leave requirement in s 96 of the ADA is designed to restrict access to hearings before the Tribunal. The High Court has also pointed out that there are no rigid rules or exhaustive criteria that must be applied when determining whether to grant leave: see Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 175. Nevertheless, the general rule is that the discretion to grant leave to appeal from an interlocutory decision should only be exercised where there are substantial reasons for doing so: Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364. 13 Another provision which provides a useful analogy with s 96 of the ADA is s 24 (1A) of Federal Court of Australia Act 1976 (Cth). That provision states that: An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. 14 An example of an interlocutory judgment requiring leave is a judgement of a Federal Magistrate to summarily dismiss a discrimination complaint because the complainant has no reasonable prospect of successfully prosecuting the claim or because the claim is frivolous or vexatious: r13.10 of the Federal Magistrates Court Rules 2001. The discrimination complaints dealt with by the Federal Court are those made under Commonwealth legislation including the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975. The provisions of those statutes are in similar terms to the provisions in the ADA. When hearing applications for leave to appeal from decisions by Federal Magistrates summarily dismissing discrimination complaints, the Federal Court has applied the following principles: (i) generally, an application for leave to appeal from an interlocutory decision will not be allowed unless the party seeking such leave is able to show that a substantial injustice would result if leave were refused and that the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–9; (ii) where the interlocutory decision concerns the substantive interests of the parties, as opposed to decisions concerning matters of practice and procedure, there is a greater likelihood that an incorrect decision will cause substantial injustice: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FAFC 270 at [8]; (iii) to amount to a substantial injustice, the complaint must have some prospect of success including, where relevant, some evidence that at least one of the reasons for the treatment about which he or she complains was a ground of discrimination, such as race: Ugur v NSW Police Service [2005] FCA 48 Emmett J at [19] and [20]; Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [45]; (iv) the evidence about the reasons for the treatment cannot be based solely on the applicant's perception of events - there must be some direct evidence or evidence from which an inference can be drawn, which supports that perception: Yo Han Chung v University of Sydney [2002] FCA 106 Spender J at [46]; Awadallah v CPA Australia [2004] FCA 768; (iv) it could not have been intended that an application for summary dismissal would give rise to an obligation upon the applicant to produce all of the applicant's evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial: Rana v University of South Australia [2004] FCA 559 Lander J at [73]. Approach to be taken by Tribunal 15 Before considering the approach the Tribunal should take to applications for leave, we pause briefly to look at the nature of the President's decision to decline a complaint and the context in which such decisions are made. There are no formal requirements for the content of a complaint to the President. The President's inquiries are conducted as he considers fit and not in accordance with the rules of evidence or the relative formality that applies to Tribunal proceedings. The purpose of the investigation is to assist the President in conciliating the complaints. If the President declines a complaint for reasons including that it is lacking in substance, he is to advise the complainant of the reason for declining the complaint and the rights of the complainant to request that the complaint be referred to the Tribunal. The term "lacking in substance" was interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that "lacking in substance" relates to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." 16 It is not generally appropriate for the President to decline a complaint as lacking in substance where there is a serious question of fact to be determined or where a serious question of credit is involved. (Spellson v George (1992) 26 NSWLR 666.) Importantly, if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the applicant has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1.) 17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 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. A 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. Consideration of material in President's Report 19 The complaint. Our first task is to consider the material in the President's Report including the complaint, the respondent's reply to it and the President's reasons for declining the complaint. Ms Xu's complaint alleges discrimination on the ground of disability in the area of goods and services, pursuant to sections 49A, 49B and 49M of the ADA. There is no dispute that she has a disability, nor is there any dispute that the respondent provided services to Ms Xu during her time at the Unit. The substantive issues raised by the complaint are whether: (1) the respondent has refused services to the Ms Xu; or (2) the respondent has provided the services on certain terms; (3) if either (1) or (2) is established, whether the respondent's treatment of Ms Xu was less favourable treatment when compared to the treatment accorded to other persons without Ms Xu's disability; and (4) whether a reason for the less favourable treatment was Ms Xu's disability. 20 Telephone calls. Ms Xu alleges that on 29 January 2004 a solicitor from the Legal Aid Commission told her that she would not get legal aid for her bail application. Ms Xu then says she contacted the Law Society to obtain a referral to a private solicitor. On 4 February 2004 Ms Xu asked permission to telephone one of the lawyers the Law Society had referred her to. Paul Cooksley did not allow her to make the call. Ms Xu also says that because she was not allowed to call private lawyers she did not get the right lawyer to help her with her bail application on 12 February 2004. On 1 March Ms Xu says she obtained a lawyer and her bail application was granted. 21 Respondent's version of events. With respect to the allegation of denial of telephone access, the respondent advised the ADB that, given that the Bunya Unit is a medium security Forensic Unit, it is necessary that patients have supervised access to the telephone. Nursing or clerical staff ring the telephone number for the patient to ensure that the person is willing to take the phone call. The call is then put through to the patient's telephone. 22 The respondent says that after her return from court on 29 January 2004 Ms Xu was allowed to make telephone calls to engage a private solicitor to represent her at the bail hearing on 12 February 2004. The respondent alleged that the Nursing Unit Manager, Mr Cooksley, received a call from a solicitor on 4 February asking that Ms Xu stop ringing his office. On the same day, the respondent alleges that nursing staff made a call to a solicitor at the request of Ms Xu. The solicitor hung up the phone after stating that they had already spoken to Ms Xu the week before and that they could not talk to her further on the phone about the matter. Mr Cooksley says that he assisted Ms Xu to make the phone call and she was not refused a service. To the extent that she was unable to speak to the solicitor on 4 February 2004, it was the solicitor's refusal to accept the call, rather than any action on the part of the respondent, which gave rise to her complaint. 23 The respondent says after being told that the solicitor had refused to take her call, Ms Xu responded in an angry and hostile manner and demanded to make another call. Following a multidisciplinary team review of Ms Xu's behaviours on 6 February a decision was made to limit the number of calls Ms Xu was permitted to make to her Legal Aid solicitor. The respondent denies that Ms Xu attempted to make a phone call on 12 February 2004. They say that she left the ward at 8 am and had no time to make any calls. 24 Withdrawal of cash. Ms Xu says that she "chased" Paul Cooksley "for a few months" to sign a document so she could withdraw cash from her trust account to buy some contact lenses. The respondent submitted that the Ms Xu was provided with the funds within four days of the request. The respondent provided the ADB with copies of the relevant documents evidencing the debit from the Ms Xu's trust account, a remittance advice and a direction that the cheque be presented to the hospital cashier. The respondent advised that there were no records indicating the date of an initial request for funds and the Nursing Unit Manager does not recall any occasion where Ms Xu's request for funds was refused. 25 President's reasons for declining complaint. On 4 April 2005, the President of the ADB wrote to Ms Xu advising her that he had declined her complaint on the basis that it was lacking in substance. The President gave the following reasons: You have not been able to provide any evidence that the Respondent's reason for denying you access to a telephone was related to your disability. The Respondent has provided a reasonable explanation for why you were unable to access a telephone unsupervised. Furthermore, the Respondent has provided a reasonable explanation for why the decision was made not to place further telephone calls for you on the dates mentioned in your complaint. You have not provided any evidence that you were unable to access funds in your Trust account, or that there was a substantial delay in the Respondent providing you with funds from your trust account for the purchase of contact lenses. The Respondent has provided evidence showing that you were provided with access to funds from your Trust account, including copies of documents signed by you confirming the receipt of the funds. Substantial reason to proceed? 26 Telephone calls. It appears that there were two occasions on 4 February when Ms Xu was refused the opportunity to make a supervised telephone call. According to the respondent, who provided the most detailed version of events, the first was when a solicitor refused to take her call. If that was the case, then Mr Cooksley did not deny Ms Xu a service in relation to the making of that call and that part of the complaint is unlikely to succeed. The second occasion was when Ms Xu demanded to make another phone call that day. It appears that that request was refused. Consequently, there is evidence which suggests that there was at least one occasion on which the service of making supervised phone calls was refused on 4 February 2004. 27 The purported reason for the refusal was that Ms Xu was confrontational and hostile. The appropriate comparator is with a person without Ms Xu's disability, not a person without any allegedly hostile or aggressive behaviours: see Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 at 137 per Gleeson J.) Given the evidence that the Tribunal has available, Ms Xu is unlikely to be able to show that if she was not suffering from depression, the respondent would have behaved any differently. That is because of the respondent's allegation that the decision to refuse to allow her to make another phone call on 4 February was based on her "angry and hostile" behaviour, not on the fact that she has a disability. 28 With respect to the allegation on 12 February 2004, there is no allegation in Ms Xu's initial complaint to the President, that she was refused the opportunity to make a call on that day. The hospital records (see page 27 of the President's report) show that Ms Xu saw a solicitor that morning. The complaint (at page 6 of the President's report) alleges that because she was not allowed to call private lawyers, she did not get the right lawyer to help her with a bail application. The bail application was heard on the morning of 12 February 2004. No allegation is made that she requested to make a call on 12 February 2004 for a private lawyer to represent her on the same day. 29 In any event, as the respondent explained in its response on 27 August 2004 (at page 14), "after her return from the Court on 29 January 2004, she was allowed to make telephone calls to engage a private solicitor to represent her at the bail hearing in Parramatta Court on 12 February 2004." The respondent went on to allege that on 6 February 2004, following a review of the Ms Xu's behaviours, a decision was made to limit the number of calls by the Ms Xu to her Legal Aid solicitor. There is no direct evidence, nor evidence from which an inference can be drawn, that there was a refusal to allow Ms Xu to make calls because of her disability. In those circumstances the complaint does not have any reasonable prospects of success. 30 With respect to the allegations concerning withdrawal of cash, the material available demonstrates that there was no refusal on the part of the respondent to provide a service, in the form of consenting to Ms Xu accessing her funds. Likewise, there is no evidence that consenting to Ms Xu accessing her funds was on any terms. As such, Ms Xu's claims do not attract the operation of section 49M(I) of the ADA. The material available at page 24 of the President's report confirms that the approval was given. The trust account records at page 21 and 22 of the President's report show that the Ms Xu had access to the funds and the withdrawal was made. Apart from her own assertion, Ms Xu has not provided any material to demonstrate that there was a refusal to approve the release of funds or she was subjected to approval on discriminatory terms. Ms Xu's complaint does not have a reasonable prospect of success. 31 It will generally be the case where an applicant is applying for leave to proceed, that there will be conflicting and untested evidence. It is not the Tribunal's role to make findings of fact, but it should look at the evidence and determine whether there is a substantial reason for allowing the complaint to proceed. There is no doubt that denial of access to supervised phone calls or to money to make necessary purchases, are matters of considerable importance. Ms Xu was a vulnerable person being detained against her will and we must be vigilant to ensure that she is not subject to discriminatory treatment. I want to make it clear that by refusing leave I am not making any finding about what happened to her. I am merely expressing a view or an impression, on the basis of the alleged facts and the law, that her claim does not have reasonable prospects of success and there is no other substantial reason for granting leave. Order Leave is refused. 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.