CITATION: Budd v State of New South Wales (Attorney General's Department) [2009] NSWADT 215 DIVISION: Equal Opportunity Division Applicant: Pamela Budd PARTIES: Respondent: State of New South Wales (Attorney General's Department) FILE NUMBER: 091026 HEARING DATES: 9 July 2009 SUBMISSIONS CLOSED: 28 July 2009 DATE OF DECISION: 17 August 2009 BEFORE: Kavanagh J CATCHWORDS: Application for leave to appeal - s96 of Anti-Discrimination Act 1977 - complaint that Administrative Decisions Tribunal Registry staff discriminated against applicant - President of Anti-Discrimination Board determined complaint lacking in substance - consideration re leave to appeal - test applicable to leave application - leave refused LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Budd v State of New South Wales (Attorney General's Department) [2008] NSWADT 239 City of Sydney Council v Satara [2007] NSWCA 148 CASES CITED: Ekermawi v Administrative Decisions Tribunal of New South Wales and Ors [2009] NSWSC 143 Salido v Nominal Defendant (1993) 32 NSWLR 524 State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146 Xu v Sydney West Area Health Service [2006] NSWADT 3 Applicant Representative: In person REPRESENTATION: Respondent Representative: Mr J. Cahill, solicitor ORDERS: The application by Ms Budd for leave of the Tribunal to proceed with a complaint under s92(1) of the Act is refused and the application is dismissed. 1 Pursuant to s 14 (2)(b) and s 14 (5)(b) of the Administrative Decisions Tribunal Act 1997, I have been requested by the President of the Administrative Decisions Tribunal to hear and determine an application pursuant to s 96 of the Anti-Discrimination Act 1977. Pamela Budd seeks the leave of the Tribunal to proceed with a complaint under s 92(1) of the Anti-Discrimination Act 1977 against the staff and Registrar of the Tribunal. For technical reasons, it has been necessary to refer to the respondent as the New South Wales Attorney General's Department (Administrative Decisions Tribunal). History 2 On or about 19 May 2008, Ms Budd, who is self-represented, submitted a complaint under Part 4A of the Anti-Discrimination Act 1977 alleging she was discriminated against on the ground of her disabilities by staff of the Administrative Decisions Tribunal Registry, contrary to ss 49A,49B, 49C and s 49M of the Anti-Discrimination Act. 3 On or about 16 February 2009, the President of the Anti-Discrimination Board declined the complaint under s 92(1) of the Anti-Discrimination Act 1977 on the basis that it was lacking in substance. 4 On 28 February 2009, Ms Budd requested the President of the Anti-Discrimination Board to refer the complaint to the Administrative Decisions Tribunal under s 93A of the Anti-Discrimination Act 1977. The Complaint 5 In order to consider the complaint made by Ms Budd, it is necessary to recite some background to the complaint. The Registrar has restricted Ms Budd's access to the Tribunal as follows: (a) telephoning the Registry only on Tuesdays between 10.00 am and 11.00 am and speaking only to the nominated officer, ................., the Senior Client Services Officer; (b) sending documents by mail; (c) sending urgent communications only (of no more than 10 pages per week) by facsimile. The name of an alternative person for Ms Budd to speak to in the event that .................. was not available was also provided. 6 Since 13 November 2004, Ms Budd has filed 16 applications in the General Division of the Administrative Decisions Tribunal. The results of these matters were two affirmed; two dismissed; eight no jurisdiction; one finding that contravention occurred and order made; and one matter was withdrawn and dismissed. 7 In the Equal Opportunity Division of the Administrative Decisions Tribunal, Ms Budd filed six matters. The results of these were: two dismissed under s 102 of the Anti-Discrimination Act 1977; three with leave not granted; and one matter was withdrawn and dismissed. 8 Ms Budd also lodged 11 appeals to the Appeal Panel. The results of these were: nine appeals dismissed; one appeal upheld with the Appeal Panel extending the appeal to the merits of the case; and one appeal withdrawn and dismissed. 9 Ms Budd complains: - the staff of the Administrative Decisions Tribunal discriminated against her on the grounds of her disabilities by imposing restrictions on the methods by which she could communicate with them and the Administrative Decisions Tribunal; and/or - staff of the Administrative Decisions Tribunal discriminated against her on the grounds of her disabilities by imposing further restrictions on the methods by which she could communicate with them and through them the Tribunal. Nature of the application 10 The President of the Anti-Discrimination Board has referred this matter to the Tribunal under s 93A(2) of the Anti-Discrimination Act 1977 following Ms Budd's request. After the President of the Board made his decision the complaint was "lacking in substance", Ms Budd requested the President refer the complaint to the Tribunal (s93A). Section 93A states: 93A Referral of complaints to Tribunal at requirement of complainant (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. 11 After the President of the Board refers a complaint to the Tribunal, Leave of the Tribunal to proceed is required in accordance with s 96(1) of the Act as follows: 96 Leave of Tribunal required for inquiry into certain matters (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. (2) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal. (3) Subsection (2) does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1987 in relation to evidence given before, or findings made by, the Industrial Relations Commission. (4) A decision of the Tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 . ' 12 The question for the Tribunal is therefore, whether leave should be granted to Ms Budd to proceed with her complaint as to the restrictions placed upon her for access to the Administrative Decisions Tribunal by the Registrar in the Administrative Decisions Tribunal. 13 This matter is not an appeal from the President's decision, nor is it an application for leave to appeal from that decision. As Hennessey DP said in Xu v Sydney West Area Health Service [2006] NSWADT 3 at [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. 14 This particular aspect of Hennessey DP's decision in Xu was reaffirmed by Schmidt AJ (as she then was) in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (currently under appeal). Her Honour was of the view at [30] that s 96 of the Act left the Tribunal's discretion in granting leave "entirely unfettered". Further, her Honour at [28] observed: . . . Had it been intended that in considering an application for leave, the Tribunal was confined to a consideration of the basis upon which the President had declined the complaint, the section could have said so directly. . . . 15 In Ekermawi, Schmidt AJ concluded the correct approach to determining whether leave should be granted was outlined in Salido v Nominal Defendant (1993) 32 NSWLR 524. On this approach, leave should be granted or refused: "depending on what was fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted" ( Ekermawi at [40]). As discussed above, the Tribunal is in no way confined to the reasons given for the President's original administrative decision to dismiss the matter. As Schmidt AJ reasoned at [31]: There can be no question that the discretion granted by s 96 has to be exercised by the Tribunal, having in mind the purpose of this legislative scheme, remedial as it undoubtedly is . . . In addition at [32]: . . . the Tribunal obviously has to have in mind that refusal of such leave will finally determine the rights of the parties under this legislative scheme . . . 16 The approach espoused by Schmidt AJ in Ekermawi repudiates the one earlier established by Hennessey DP in Xu, which imposed upon the plaintiff an obligation to establish a "substantial reason for leave to be granted". That test, as defined by Hennessey DP, is a more severe test than that determined by Schmidt AJ and the applicable approach, I accept, in determining the question of leave pursuant to s96(1) is to identify whether it is fair and just to grant or refuse leave in the particular circumstances. In this regard Schmidt AJ said (at [38]): The emphasis in s 73(3) on 'equity, good conscience and the substantial merits of the case', is an emphasis entirely consistent with approaching the question of leave on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward. That requires the position of both parties to be considered. 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. 17 I adopt the view expressed by Schmidt AJ and determine the appropriate test is whether it is fair and just, in the particular circumstance, that leave be granted to appeal. Applicant's Submissions 18 Ms Budd, in support of her complaint that the registry had used these restrictions to stop her access, makes the following statement that she was told: Don't ring in all your [sic] not entitled to use access or ring all the ADT on Tuesdays too, as you're strain on the ADT's resources. When I ring on Tuesday's [sic] to ring in and refuse to address my issues in the little time; and, The new staff Lily as told [sic] to a adopt the discrimination to keep me without adequate communication and stopped me access the Tuesdays and she told me not to ring in [sic] Tuesday or gave me time to explain or speak my cases. 19 Ms Budd named a number of registry staff who she asserts have denied her access. She further contends that she needs to have greater access to the Tribunal to deal with her case; she wishes to fax at any time; she has been lied to; she has been abused on the telephone. 20 Ms Budd contends the Administrative Decisions Tribunal's Registrar, by the very existence of the restrictions, has placed limits on her actions, which limits aggravate her disabilities and prevent her from communicating with the Administrative Decisions Tribunal at all. Ms Budd also asserts the original restrictions have been made more severe and she has had her access to the Administrative Decisions Tribunal "cut off" and she is being "targeted". 21 The respondent opposes a grant of leave and reliance is placed by the respondent on a decision of Staff J who considered a prior complaint of Ms Budd in Budd v State of New South Wales (Attorney General's Department) [2008] NSWADT 239 (26 August 2008). His Honour considered a complaint related to Ms Budd's assertion that restrictions placed upon her access by the Administrative Decisions Tribunal Registry staff were excessive and unfair. 22 Staff J, after reciting Ms Budd's history of dealing with the General Division, the Equal Opportunity Division and the Appeals Panels (see above [6]-[8]), held as to the evidence before him leading the Registrar to impose the restrictions: 8 . . . Ms Budd contacted the Registry a number of times most days and engaged in lengthy conversations with different staff members raising the same issues repeatedly. These conversations were particularly frustrating to staff but also meant that staff were not able to attend to other enquiries. Ms Budd also regularly faxed lengthy materials, often up to 200 pages to the Tribunal. This meant that the Tribunal could not receive facsimile communications from other parties as the facsimile machine was engaged with receiving documents from Ms Budd. 9 Officers of the Tribunal dealing with Ms Budd also raised occupational health and safety issues. Accordingly, after consultation with the Disability Services Unit, a letter was forwarded to Ms Budd advising her that her access to services would be restricted, as referred to earlier in these reasons. 23 Staff J made the following findings (at [16]-[19]): 16 . . . The reasons for the restrictions being placed on Ms Budd by the Registrar of the Administrative Decisions Tribunal were that Ms Budd contacted the Registry on a number of occasions most days and engaged in lengthy conversations with different staff members raising the same issues repeatedly. Ms Budd also regularly faxed lengthy materials, often up to 200 pages, to the Tribunal, resulting in the Tribunal being unable to receive facsimile communications from other parties. 17 For proceedings such as those sought to be brought by Ms Budd, there is often reliance on the situation of "a comparator", and that is what Ms Budd has done as I understand her submissions. The appropriate comparator is with a person without Ms Budd's disabilities: see Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133 at 137 per Gleeson CJ. Taking into account the evidence that the Tribunal has available, Ms Budd is unlikely to be able to show that if she was not suffering from agoraphobia (and the other disabilities), the respondent would have behaved any differently. That is because the respondent is not requiring Ms Budd to comply, or is imposing a condition that she is unable to meet because of her disability/disabilities in circumstances where the Tribunal has obligations in terms of the public interest to provide appropriate services to all clients of the Tribunal. 18 The restrictions do not seem to me to be unreasonable. Such conditions would no doubt be imposed on any client who regularly and repeatedly engaged in lengthy conversations with employees of the Registry and faxed voluminous materials. The Tribunal has not stopped Ms Budd from accessing services offered by it but restricted when such access can occur. There is no direct evidence, nor evidence from which an inference can be drawn, that there was a refusal to allow Ms Budd unrestricted access to the Registry because of her disability. In those circumstances, I consider that the complaint does not have any reasonable prospects of success. 19 This is an unusual matter in that there is not conflicting or untested evidence, or a serious question of fact to be determined, or a serious question of credit involved. . . . Access to any court or tribunal registry is a fundamental entitlement for any litigant. Ms Budd's access is still available, albeit, restricted because of what has been regarded as a quite inappropriate use by her of the services and facilities provided by the Tribunal. In my view, her claim does not have reasonable prospects of success . . . 24 The respondent admits restrictions were imposed on the methods by which Ms Budd could communicate with the Administrative Decisions Tribunal, but says they were not imposed because of her disabilities. The respondent denies it has imposed further restrictions on Ms Budd. Consideration Adjournment Application 25 Ms Budd, in correspondence, made two separate complaints, one against the Registry staff and the other against a Tribunal appointed representative. For the convenience of Ms Budd, both matters were listed together. The hearing on each complaint was set down for 9 July 2009. Ms Budd was notified of this hearing date on 19 June 2009. 26 This decision relates to her complaint re restrictions placed upon her access to the Registry staff. Her second complaint, relating to a Tribunal appointed representative, is being considered in a separate decision. 27 Ms Budd, on 6 July 2009, requested an adjournment of both hearings set down for 9 July 2009. She wrote she was ill and "the ADB made severe mistakes" and she wanted a review of the errors by the Board before it was forwarded to the Tribunal. She contended procedural fairness required the Board to review its decision. 28 The Registrar then wrote back to her the same day advising her that Practice Note No 4 outlined the procedure a party must follow to make an application for an adjournment. Relevantly, Practice Note Number 4 states: ADMINISTRATIVE DECISIONS TRIBUNAL PRACTICE NOTE No. 4 (PN4/00) Application to Change Hearing Dates On 2 January 2001 the Tribunal will introduce a new policy on the applications for change of hearing dates that have been set in matters before the Tribunal and the Appeal Panel of the Tribunal. This policy will apply to all Divisions of the Tribunal. A hearing date will only be changed where it can be shown to the satisfaction of the Presiding Member that circumstances have arisen which are beyond the control of the parties or their representatives. A party wishing to make an application to change a hearing date will need to consult with the other party prior to making an application to the Tribunal. The application will need to be in writing setting out the reasons for the application and informing the Tribunal whether the other party consents or does not consent to the application. An application to change a hearing date by consent without explanation will not ordinarily be granted nor will applications based on practitioner unavailability. Judge KEVIN O'CONNOR President 12 December 2000 29 No further correspondence was filed before the hearing date from Ms Budd. Ms Budd (who because of her disabilities does not attend hearings) was telephoned on the hearing date, 9 July 2009, to hear her application for an adjournment and/or to hear the substantive matter of her complaint. Consistently she answered the telephone and on the identification of the Tribunal to her, hung up the telephone. Correspondence from her acknowledges receipt of these calls. 30 The respondent opposed Ms Budd's adjournment application. 31 A Tribunal has power to grant the adjournment sought if justice requires that outcome. As the Court of Appeal in City of Sydney Council v Satara [2007] NSWCA 148 observed at [31]: A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice: Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA; at 210–211 per Holmes JA. 32 The overall aim is the attainment of justice (State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146). The Court must do what justice requires as between the parties to the appeal. The Tribunal must, in considering the applicant's application for an adjournment, determine whether the respondent to the appeal would be denied justice if the adjournment was granted, as well as to consider whether to refuse the adjournment would prejudice the applicant to the point of denying her justice. 33 I considered all the matters placed before me including, in the interests of justice, the various statements made by Ms Budd and her medical evidence. The appellant's explanation she was not well was not an acceptable explanation. She had chosen to litigate and must take responsibility for that decision. She relied upon the fact it is her opinion the President of the Board has made a mistake. She requested the President to review the decision to refer the matter. Any review is by the Tribunal. The President of the Board has no power to review his own decision. 34 The applicant, having chosen to be self-represented, had failed, in my view, to proffer any substantial reason for an adjournment. 35 She tendered medical evidence in her reply submissions, however, that evidence confirmed her ongoing disability (which disability is not a matter of dispute). It did not support, in particular, any application for an adjournment. The difficulty is Ms Budd's condition does sometimes become more severe. However, more is required to allow for an adjournment. 36 As there is a public interest in the prompt conduct of litigation. I rejected the applications made by Ms Budd for an adjournment. 37 I was further satisfied Ms Budd had every opportunity to make submissions on the question of leave to appeal the President's decision. The Tribunal determined to hear the application for leave. 38 The respondent made submissions on leave and provided those submissions in writing. Ms Budd was given two weeks to reply. In her reply, Ms Budd repeated her request for an adjournment and her desire for the Board to reconsider its mistakes. 39 Ms Budd makes her complaint of discrimination relying on ss 49A, B and C and particularly the following provision of the Anti-Discrimination Act 1977: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 40 Ms Budd has a disability. She suffers from agoraphobia, social phobia, situational phobia, anxiety attacks and panic disorders. She complains the restrictions placed on her direct access to the Tribunal through the Registrar and her access to the Board are unfair. She further complains those restrictions have been made more rigorous. 41 Ms Budd, as the applicant, carries the onus. I am satisfied the subject matter of this complaint is substantially similar to the complaint dealt with by Staff J. Therefore the question as to whether the restrictions are a breach of the Anti-Discrimination Act 1977 has already been dealt with and the complaint dismissed. 42 However, even if this matter was the initial consideration of the restrictions, I find, even under the restrictions placed upon Ms Budd, it is evident she is still able to prosecute complaints with the Administrative Decisions Tribunal. That Ms Budd is able to (and continues to) communicate with the Administrative Decisions Tribunal is evidenced by the two complaints from Ms Budd (being these proceedings No. 091026 and proceedings No. 091027) which are presently before me. Even with the limitations placed upon her access, Ms Budd is still able to have her complaints considered in accordance with the law. 43 I do not, from the evidence and an examination of the file, accept that any "further" restrictions have been placed upon Ms Budd. Ms Budd asserts a new staff member blocked her access to the Registry on one occasion. Even accepting there may have been an incident where a new staff member spoke carelessly to Ms Budd on one occasion, I am not persuaded access for Ms Budd to the Administrative Decisions Tribunal has been, through such a conversation, thwarted, nor that there have been placed "further" restrictions on Ms Budd. The Registry, I am satisfied, continues to comply with its ruling to deal with Ms Budd's complaints in accordance with the Registrar's determination. I am further persuaded that what Ms Budd sees as "restrictions" could be seen as positive steps taken to ensure Ms Budd is provided with assistance. Direct Discrimination 44 I am further of the view (as was Staff J) the restrictions placed on Ms Budd in the circumstance were fair and just. Ms Budd has filed a number of complaints with the Administrative Decisions Tribunal. Ms Budd is unlikely to be able to show that if she was not suffering from agoraphobia (and the other disabilities from which she suffers), the Board would have behaved any differently. The restrictions do not impose a condition she is unable to meet because of her disability/disabilities. The Tribunal has obligations in terms of the public interest to provide appropriate services to all clients of the Tribunal and from the evidence before me, I am satisfied it continues to provide that service to Ms Budd. 45 I find Ms Budd has no reasonable prospects of establishing a complaint of direct discrimination as: - there is no evidence, either direct or from which an inference can be cast, that the acts complained of were done because of or on the grounds of any of Ms Budd's disabilities; and/or - there is no evidence, either direct or from which an inference can be cast, that Ms Budd was treated any differently than any other person without Ms Budd's disability who had engaged in such a lengthy and regular correspondence with the ADT. Indirect Discrimination 46 I am also persuaded Ms Budd has no reasonable prospects of establishing indirect disability discrimination because: - there is not evidence, either direct or from which an inference can be drawn, that Ms Budd could not because of her disabilities comply with the restrictions imposed by the ADT, and - the restrictions were reasonable because they were designed to ensure that Ms Budd's communications with the ADT did not prevent or frustrate access by others to the ADT staff. 47 I find, therefore, Ms Budd has no reasonable prospects of succeeding in this application. In the circumstance, I find it is not fair nor just to the respondent to grant leave. I am further satisfied most of the content of this complaint has been given consideration by Staff J. I must consider what is just and fair to both parties. Ms Budd has already had the substance of this complaint considered. I have found no evidence of further restrictions placed on her by the Registrar. The interests of justice require that the respondent not be compelled to again defend itself against a complaint already determined. 48 I am satisfied Ms Budd has a relevant disability. I am, however, not satisfied she has been discriminated against in relation to her disability/disabilities. I am further satisfied, although Ms Budd perceives she suffers unjustifiable hardship in what she feels is her need to contact the Tribunal at any time, the restrictions in the particular case, for the above reasons, are not imposing upon her an unjustifiable hardship. In my view, the restrictions, given the particular circumstance, are justified (s 49C). I further find, in the provision of a service to her, the staff of the Registry have not refused to provide her with a service, nor that the terms of that service are discriminatory (s 49M). 49 I decline the application for leave. The application is dismissed. Order 50 The application by Ms Budd for leave of the Tribunal to proceed with a complaint under s 92(1) of the Act is refused and the application 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.