State of New South Wales (NSW Police Force) v Mohamed [2009] NSWADTAP 40

Appeal Panel - Internal

CITATION: State of New South Wales (NSW Police Force) v Mohamed [2009] NSWADTAP 40

APPELLANT State of New South Wales NSW Police Force)

PARTIES: RESPONDENT Rehab Mohamed Senah Mohamed Mounir Mohamed

FILE NUMBER: 099016

HEARING DATES: 8 May 2009

SUBMISSIONS CLOSED: 8 May 2009

EXTEMPORE DECISION DATE: 8 May 2009 BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Leave to appeal against interlocutory decision, leave granted as there is sufficient doubt about whether the prevention and detection of crime by the Police Force comes within the meaning of "services' in the Anti-Discrimination Act 1977

DECISION UNDER APPEAL: Mohamed & Ors v State of NSW (NSW Police Force) [2009] NSWADT 51

FILE NUMBER UNDER APPEAL: 081046

DATE OF DECISION UNDER APPEAL: 03/05/2009

LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997

CASES CITED: WL v Randwick City Council [2009] NSDWADT AP 10

APPELLANT M Hutchings, counsel REPRESENTATION: RESPONDENT No appearance

ORDERS: Leave to appeal against the Tribunal's interlocutory decision is granted.

REASONS FOR DECISION 1 The following is the text of reasons for decision delivered orally on 8 May 2009. 2 This is an application for leave to appeal against a decision of Deputy President Britton made 5 March 2009. The nature of that complaint is set out by the Tribunal at paragraphs 27 to 29 of its decision. The decision was to refuse an application for summary dismissal of a complaint made by three applicants, Rehab Mohamed, Senah Mohamed and Mounir Mohamed. The three applicants complained about conduct of officers of the New South Wales Police Force in relation to an incident which occurred in 2007. They complained of race discrimination in the provision of services. The main argument that the Police Force put forward when applying for summary dismissal was that the conduct of police did not come within the meaning of "services" in section 19 of the Anti-Discrimination Act 1977. The Tribunal rejected that proposition and refused to dismiss the complaints. 3 In the leave hearing today the applicants did not appear. I am satisfied that they have been notified of the hearing in writing but have chosen not to attend. Counsel for the Police Force, Mr Hutchings, provided written submission outlining his application. 4 There is no issue that the decision of the Tribunal was an interlocutory decision and that leave is required, pursuant to section 113(2A) of the Administrative Decisions Tribunal Act 1997 before the appeal can proceed. The principles for determining whether leave should be given have been summarised by the Appeal Panel in WL v Randwick City Council [2009] NSDWADT AP 10 at [7] to [14]. Borrowing from principles set out by the High Court and the Federal Court in a similar context, the two circumstances that are relevant to a leave application are firstly whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal and secondly whether substantial injustice would result if leave were refused supposing the decision to be wrong. In addition, 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 would cause substantial injustice. 5 On the first question, that is whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal, the Police Force submitted that the Tribunal misconceived the parameters of the applicants' complaint. The argument in support of that submission is set out at paragraphs 17 to 27 of the Police Force's written submissions. While not making a final determination on this point I am not persuaded, on the basis of what has been put today, that the Tribunal misconstrued the scope of the applicants' complaint. While the words used by the Tribunal at paragraph 35 are arguably ambiguous, it is clear to me on a preliminary view that the Tribunal accepted that the applicants were complaining not about the decision to arrest, charge or prosecute a particular person but in a more general sense about the prevention and detection of crime. 6 Even though that question does not raise sufficient doubt to justify leave being granted, there is, in my view, sufficient doubt about the Tribunal's analysis and decision in relation to whether or not the prevention and detection of crime can be characterised as a service for the purposes of the Anti-Discrimination Act 1977. The arguments put forward by the Police Force on that point appear at paragraphs 28 to 35 of their submissions. Although the Police Force conceded that their argument depended on reasoning by analogy from decisions relating to negligence against police officers to those relating to discrimination, I accept their argument that if that analogy is correct it would mean that services relating to the prevention and detection of crime are not services in terms of the Anti-Discrimination Act 1977. 7 This is a significant legal point which requires clarification and, in my view, that clarification is best given at an early stage rather than putting the parties to the time and expense of having the substantive complaint determined and then potentially having to appeal from that decision. In addition, the decision to refuse the appellant's application for summary dismissal goes to the substantive interests of both parties. It is not merely a procedural issue or an issue of practice. That is another factor suggesting that leave should be granted. I am conscious of the fact that the applicants are not present today and are not legally represented. I will make a recommendation to the Registry that they be contacted to give them some information about obtaining legal advice and possibly representation on appeal. I think this is a matter of such significance that it would be very much in the public interest for the applicants to be represented at any hearing and for the Tribunal to have the benefit of an opposing view.