CITATION: NZ v State of New South Wales [2009] NSWADT 98 DIVISION: Equal Opportunity Division APPLICANT NZ PARTIES: RESPONDENT State of New South Wales (Attorney-General's Department) FILE NUMBER: 081118 HEARING DATES: 23 March 2009 SUBMISSIONS CLOSED: 14 April 2009 DATE OF DECISION: 7 May 2009 BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Capacity of applicant to represent herself - jurisdiction of Tribunal to entertain the complaint - whether fair and just to grant leave. LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594 CASES CITED: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 APPLICANT In person REPRESENTATION: RESPONDENT J Cahill, solicitor ORDERS: Leave is refused. Introduction 1 NZ complained to the President of the Anti-Discrimination Board (ADB) that the Local Court had discriminated against her on the ground of disability by issuing her with a notice that required her to attend court in person. The notice stated that if she failed to attend, the court may make orders against her or issue a warrant for her arrest to bring her before the court. NZ has a severe anxiety disorder that prevents her from leaving her home except on rare occasions in the company of her son. She said that she was not able to comply with the alleged requirement to attend in person because of that disability. The President of the ADB declined her complaint as not disclosing a contravention of the Anti-Discrimination Act 1977(AD Act). There are two preliminary issues. The first is whether NZ is capable of representing herself and, if not, whether the Tribunal should appoint a person to represent her. The second is whether the Tribunal has jurisdiction in relation to the complaint. If the Tribunal has jurisdiction, the question for determination is whether leave should be granted for the complaint to proceed. In accordance with NZ's request, these issues have been determined "on the papers" pursuant to s 76 of the Administrative Decisions Tribunal Act 1997 (Tribunal Act). 2 I have made an order, pursuant to s 75(2)(b) of the Tribunal Act prohibiting the disclosure of the applicant's name and any other identifying details. The reason for that order is that I need to refer in these reasons to other decisions in which NZ was a party and to do so without a suppression order in these proceedings, would reveal her identity. Capacity to represent herself 3 In previous proceedings, the Tribunal has found that because of her psychiatric illness, NZ is totally or partially incapable of representing herself and has appointed a person to represent her pursuant to s 71 of the Tribunal Act: eg NZ v NSW Department of Housing [2008] NSWADTAP 67. In relation to these proceedings, the Tribunal directed NZ to file and serve any further material in support of her contention that she is capable of representing herself. NZ provided a bundle of documents which were, in some cases, incomplete. She said that she has completed tertiary studies in recent times and that Dr P Klug expressed the opinion in a report dated 12 September 2005, that she is rational and logical and of above average intelligence. 4 Among the material NZ provided to the Tribunal was part of a report dated 5 October 2005 from Dr Patricia Jungfer, a consultant psychiatrist, prepared in relation to other proceedings in the Tribunal at the request of the Department of Housing. With NZ's consent the Tribunal obtained a full copy of that report from one of her former solicitors. Dr Jungfer diagnosed NZ with "panic disorder with agoraphobia" saying that she presents "with a complex symptom cluster of anxiety, panic attacks and severe agoraphobia." In Dr Jungfer's opinion: [NZ] has a number of unresolved issues regarding the Department of Housing. To date she has not received aggressive nor appropriate therapy but has pursued redress of her injuries through Tribunal systems. 5 Dr Jungfer also noted that NZ, "describes a significant fear and dread regarding the conduct and behaviour of her neighbours and has a marked persecutory style of viewing her relationship with her wider community." 6 My view, formed in previous proceedings, that NZ is incapable of representing herself has not changed on the basis of the material NZ has submitted. Her level of intelligence is not the issue. Her incapacity stems from her inability to organise and present material in support of her application. She is prone to verbosity and presents voluminous documentary material in a disorganised and sometimes incomplete fashion. She also has difficulty giving the Tribunal a coherent version of events and identifying relevant material and issues. 7 Although I have formed the view that NZ is incapable of representing herself, I have decided not to appoint a representative for her in relation to these proceedings. The reasons for declining to do so are two fold. Firstly, NZ has vehemently objected to the Tribunal appointing a person to represent her in the past and has been unwilling to co-operate with that person or accept decisions made by that person on her behalf. Secondly, given this history, it is difficult for the Tribunal to find a suitably qualified person who is prepared to represent NZ. Jurisdiction 8 On 8 September 2008 the President wrote to NZ declining her complaint as not disclosing a contravention of the AD Act and informing her that she had until 3 October to require him to refer the complaint to the Tribunal. Section 93A gives an applicant 21 days to require the President, by notice in writing, to refer a complaint to the Tribunal after it has been declined. On receipt of such a notice the President is obliged to refer the complaint to the Tribunal. I note that s 94B provides that if a notice is given by post, "a period calculated from the day on which the notice is given is taken to run from, and includes, the fourth day after the notice was posted." That provision explains why the President gave NZ until 3 October to respond. 9 NZ contacted the ADB by phone on 12 September and left a message questioning the President's decision to decline her complaint. On 13 October 2008 an officer from the ADB wrote to NZ advising her that as they had not received a written request that the matter be referred to the Tribunal, the file would be closed and no further action would be taken. Notwithstanding that decision, the letter invited NZ to provide evidence that she had sent a written request to the ADB within the statutory time period. On 20 October 2008 the ADB received a letter dated 18 October from NZ. That letter said: Message: Please Note: Here is the letter I sent to the Board and explained my situation and problems. Your Board makes errors and also this needs to be sent to the Tribunal ADT, I have asked for this in letter 12 September 2008. 10 The letter attached to this letter was dated 12 September 2008 and said, in part: I believe your decision to decline the complaint is unfair so, I rang to complain today 12th September 2008. I will still wish you to send it to the Tribunal however as I am ill trying to get cured and to be denied my legal rights due to the Registrar's (not the Magistrate) discrimination that is the issue and cause (sic) me to suffer. So I am sending this to you in my piles of faxes and so try to post one as well as I depend totally my my (sic) sole carer, I cannot he (sic) is not always here to post for me: so I have to wait for this and that takes time for him to get around to assist me, as my sole carer. My relative is also suffer from the DOH problems as well so as a sole carer and taking respite this is not possible for me to be in time: plus, my illness prevents me to do your time policies as well, as I suffer brain disorders so it is unreasonable for you to impose that to me, given the situation without consideration for me under special circumstances. . . . So, I hope you receive this letter to ensure you send this matter to the ADT for hearing. 11 Not being satisfied with this letter as evidence that NZ had in fact faxed or posted the 12 September letter, an officer of the ADB wrote to NZ on 21 October 2008 requesting that she send the facsimile report. On 24 October 2008 NZ replied saying in part: I am writing to you to complain about the process and the problems in the administration duties in your Board caused (sic) to me this matter. In this complaint and all my issues I have specially asked your Board to take "all my mental illness into account" in regard to the fact that due to my mental illnesses, I cannot comply to even your own Board's requirements; this means to (sic) "out of time" and so your Board is not caring to make allowances for me in this area. . . . I have specially told the Board abundantly that all my matters are to go to ADT Tribunal. I sent Andrea a letter copy of my fax to show her I did ask this in time. See the letter 12th September 2008; to (sic) is enough your Board should ask of me, since I suffer mental disorders and cannot get out in any normal way due to illness, to do your requirement. . . .However, this is faxed and my fax machine does not have the number coming on the faxes when it goes to your Board, as my fax does not have this operation workable.. . Obviously the Board has misplaced my documents . . . 12 On 31 October 2008, the President's delegate wrote to the Tribunal in the following terms: On the 13 November 2007 the Board received a complaint from [NZ] alleging discrimination on the grounds of her disability by the NSW Attorney General's Department (Downing Centre Local Court) in the area of goods and services. Following the Board's investigation of this matter, the President has decided to decline [NZ's] complaint as not disclosing a contravention under the Act, s 92(1)(a)(ii) of the Anti-Discrimination Act 1977. It is unclear whether [NZ] did in fact notify the Board in writing to refer the matter to the ADT as required by the Act. This is outlined in more detail in the President's report. The President's report is enclosed with this letter. I also attach the documents that were originally obtained during the course of the investigation as noted on the Index of Tabs. 13 The President's Report outlined the process that the President had undertaken following the declination of NZ's complaint and enclosed relevant documents. 14 The Department submitted that NZ was unable to prove to the ADB that she made the request within the required time frame and that although the President sent a report to the Tribunal, the complaint had not been validly referred and the Tribunal lacks jurisdiction to entertain it. 15 In written submissions to the Tribunal dated 27 March 2009, NZ said, among other things, that: . . .due to my mental disorders I told the ADB board (sic) I cannot comply to their requirements in time issues at all. This does not apply for me, you can (sic) my mental disorders prevent me to comply: (refer to Dr Cohen report, he recent (sic) confirm this.) This is therefore not relevant to raise this, the AG confirms the President did not deal with this out time (sic), because due to my mental disorders prevent me to time 21 days issue, he not need to raise that as issue. This is why the President cannot raise, he got to consider my mental disorders prevent me to within 21 days. . . . My illness prevents me to do ABD Boards (sic) time issues: I have done this, he is repeat (sic) himself. Due to illness, I do not have to do that to ADB. They accept my mental disorders prevent me to do any time issues (21 days): so why cannot Mr Cahill take similar understanding and the AG; illness prevents me to do that. 16 It is well established that the Tribunal can determine the scope of its own jurisdiction, including determining whether certain facts are "jurisdictional facts": Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 71. Jurisdictional facts are, in the words of Dixon J., ". . any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend": Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. 17 The leading case on this issue is Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (28 April 1998). McHugh, Gummow, Kirby and Hayne JJ said at [91] that: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 18 In interpreting paragraphs [91] to [93] of the decision in Project Blue Sky, Spigelman CJ, Mason P and Meagher JA in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 (9 February 1999), said at [38] that: The issue of jurisdictional fact turns, and turns only, on the proper construction of the Statute. (See e.g. Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125). The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (`objectivity') and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (`essentiality').( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [91]-[93]). 19 In this case, the Tribunal's jurisdiction depends on the President of the ADB referring a complaint to it pursuant to section 90B, 93A, 93B or 93C. That is clear from s 95 of the AD Act: (1) A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C. (2) The Minister may refer any matter to the Tribunal as a complaint. (3) For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act. 20 Except for the powers vested in the Minister by s 95(2), proceedings in relation to complaints under the AD Act cannot be commenced directly in the Tribunal. As the President declined the complaint as not disclosing a contravention of the AD Act, s 93A is the only provision pursuant to which the complaint could have been validly referred. That provision states that: (1) If the President has given a complainant a notice under section 87B (4), 91(4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal. (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal. 21 When writing to the Tribunal on 31 October 2008 the President's delegate did not say that she was referring the complaint pursuant to s 93A(2) or any other provision of the AD Act. Rather, she made the comment that, "It is unclear whether NZ did in fact notify the Board in writing to refer the matter to the ADT as required by the Act." The President's delegate nevertheless attached a report of the investigations pursuant to s 94A(2) which states that: (1) If a complaint is referred to the Tribunal under this Division, the complaint is to comprise: (a) the original complaint lodged with the President, and (b) any amendment made pursuant to section 91C, and (c) any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations. (2) A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint. 22 Although NZ's letters to the ADB and submissions to the Tribunal appear, in parts, to concede that she cannot (and therefore did not) comply with the 21 time frame, her correspondence also states very definitely that she faxed the 12 September letter to the ADB and that the ADB must have misplaced that document. The President's delegate does not deny that the NZ made that request; she merely says that it is not clear whether it was made or not. Although the question is not free from doubt I am satisfied, on the balance of probabilities, that NZ sent the 12 September letter by facsimile to the ADB. She telephoned the ADB on that day and was aware of the time frame. I note, for NZ's benefit, that the 21 day time frame is mandatory. Neither the President, nor this Tribunal, has power to extend or waive it even in circumstances such as these where NZ says that her disability may prevent her from complying with it: Raniere Nominees Pty Ltd v Daley (2005) 66 NSWLR 594 at [62] per Santow JA. As NZ complied with the mandatory time frame, the complaint was validly referred pursuant to s 93A(2). Consequently, the Tribunal has jurisdiction to entertain it. Approach to leave applications 23 When determining whether to grant leave, the Tribunal should identify whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ at [38]. The Supreme Court said that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. Background to complaint 24 In January 2007, NZ's general practitioner, Dr Goodman, terminated the doctor/patient relationship which had existed for close to 20 years. In August of that year Dr Goodman applied to the Local Court for an Apprehended Violence Order against NZ to prevent her from writing and faxing material to her threatening legal proceedings. The AVO was first listed on 5 September 2007. The application, which was served on NZ, contained a Notice to Defendant in the following terms: Your are directed to attend the Local Court on: Date: 05/09/2007 Time: 09.30 am Place 143-147 Liverpool St, Level 4 Downing Centre, Sydney If you fail to attend the court may make orders against you or issue a warrant for your arrest to bring you before the court. You can get further information about this document from; The court Registry A legal practitioner LawAccess NSW on 1300 888529 or www.lawaccess.nsw.gov.au 25 NZ wrote to Dr Goodman on 29 August 2007 asking her to withdraw the application. She did not appear on 5 September 2007 and the application was adjourned for mention to 3 October 2007. NZ received a notice from the Court advising her of the adjournment. That notice stated in part that: The matter MAY be determined in your absence on the next occasion so you should ensure that either you or your legal representative, appear on that day. If you cannot attend, you should telephone the court Office BEFORE 9.30 am on the adjourned date. 26 It appears that Dr Goodman subsequently withdrew the application. Legal basis of complaint 27 In order to substantiate her complaint of disability discrimination in the provision of goods and services contrary to s 49M, NZ would have to: a) prove that she has a disability within the meaning of that term in section 4 and section 49A; b) define the nature of the services that the State of NSW was providing to her when issuing the notices; c) establish that those services come within the meaning of services in the AD Act; d) prove that the services were refused or provided on less favourable terms than they were provided or would have been provided to a person without her disability; and e) prove that that refusal or provision on less favourable terms constitutes direct or indirect discrimination as defined in s 49B. 28 By way of defence, the Department submitted that there was no liability for a complaint of discrimination because the act of a Registrar in issuing such notices is protected by judicial immunity. 29 Disability. I accept for the purpose of these proceedings that NZ has a disability within the meaning of that term in the AD Act. 30 Defining the service within the meaning of the term in the AD Act.. When issuing a notice to attend court, it is arguable that the Court is providing a service, namely "access to facilities, equipment and administrative support which allows parties to proceedings to participate in and contribute to the process by which their case is resolved judicially." (See Bradley -v- State of New South Wales [2002] NSWADT 11). It is also arguable in this case that those services come within the definition of services in the AD Act. However, the better view is that the provision of a notice to a defendant in proceedings for an AVO does not come within the definition of administrative support and is not a "service" within the meaning of that term in the AD Act. Giving a person adequate notice of a hearing and advising them of the consequences if they do not attend, is an element of the rule of procedural fairness which it is incumbent on the judiciary to uphold. It is an inherent part of the judicial process and cannot be characterised as a purely administrative function. It is likely on that basis that NZ's complaint would fail if it proceeded to a hearing. In case I am wrong, and the provision of a notice of this kind does constitute a service within the terms of the AD Act, I will go on to consider the remaining elements that would need to be proved. 31 Direct or indirect discrimination? NZ did not characterise her complaint as either direct or indirect discrimination within s 49B(1)(a) or (b). It is difficult to see how this complaint constitutes direct discrimination on the ground of disability. NZ has not been treated less favourably than a person who does not have her disability was, or would have, been treated in the same or similar circumstances. My understanding is that these notices are standard documents sent to all defendants to AVO applications who do not appear on the first occasion. NZ has not been singled out because of her disability. Rather, NZ appears to be complaining that the alleged requirement for her to attend court in person constitutes indirect discrimination. The elements of indirect discrimination, as defined is s 49B(1)(b), are that: 1. The State of NSW has imposed a requirement or condition that defendants to AVO applications attend court in person or risk having an order made against them or a warrant issued for their arrest; 2. NZ could not comply with that requirement because she is unable to leave her home except on rare occasions; 3. A substantially higher proportion of people without NZ's disability can comply with the requirement compared with people with that disability; 4. The requirement is not reasonable in all the circumstances. 32 Requirement or condition? A Tribunal hearing this complaint may find that the State of NSW has imposed a requirement in the terms set out in the notice. However, although expressed in mandatory terms, the requirement is a discretionary one. Failure to attend "may" result in an order being made against a defendant or in a warrant issuing for that person's arrest. NZ did not attend Court on 5 September 2007. No orders were made against her and no warrant was issued for her arrest. Instead the matter was adjourned to a later date. Although I accept for the purpose of these proceedings, that NZ cannot attend Court in person, she was never "required" to do so. When the matter was adjourned she was sent a second notice saying that if she could not attend in person she should telephone the Court Office before the adjourned date. 33 Substantially higher proportion test. If a Tribunal found that there was a requirement to attend Court in person, it is likely that NZ could establish that a substantially higher proportion of people not suffering from severe agoraphobia could comply with that requirement compared with people such as NZ who have that disability. 34 Reasonableness. The final requirement is that the requirement is not reasonable in all the circumstances. A Tribunal would be highly unlikely to find that it was unreasonable for a defendant to an application for an Apprehended Violence Order to be sent a notice setting out the possible consequences if a person does not attend in person on the next occasion. 35 Defence of judicial immunity. Even if NZ were able to substantiate a complaint of indirect disability discrimination, it is likely that the Registrar who issued the notice would be protected from liability by the principle of judicial immunity. In Wentworth v Wentworth & Ors [2000] NSWCA 350 Fitzgerald JA said at [58] that: If judicial immunity is afforded to a judge in respect of his or her exercise of the court's power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to Judges and court officers. 36 As I have said, compliance with the rules of procedural fairness is part of the judicial process and cannot be characterised as a purely administrative function. On that basis the State of NSW is highly likely to be immune from prosecution in relation to this complaint. Despite the fact that refusing leave will deny NZ the possibility of a remedy in relation to a matter which she views as discriminatory, the complaint is so lacking in substance that it is not fair or just to permit it to proceed. 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.