Joint Coal Board v Anti-Discrimination Board of NSW & Anor [2001] NSWSC 712

New South Wales Supreme Court

CITATION : Joint Coal Board v Anti-Discrimination Board of NSW & Anor [2001] NSWSC 712 CURRENT JURISDICTION: Equity Division Administrative Law List FILE NUMBER(S) : SC 30014/01 HEARING DATE(S) : 16 August 2001 JUDGMENT DATE : 16 August 2001

Joint Coal Board (Plaintiff) PARTIES : President, Anti-Discrimination Board of NSW (First Defendant) Hamilton Koelmeyer (Second Defendant) JUDGMENT OF : Brownie AJ

COUNSEL : Chris Ronalds (Plaintiff) Glenn Bartley (Defendant) Colin Biggers & Paisley (Plaintiff) SOLICITORS : Crown Solicitor (1st Defendant) In Person (2nd Defendant) CATCHWORDS : Administrative Law - Judicial review at common law - Abuse of discretionary power - Consideration of irrelevant matter - Acceptance of complaint out of time by Anti-Discrimination Board LEGISLATION CITED : Supreme Court Act 1970 Anti-Discrimination Act 1977 McAuliffe v Puplick (1996) EOC 92-800 CASES CITED : Fraser v President, Anti-Discrimination Board [2000] NSWSC 1083 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : Dismiss summons with costs

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW LIST

BROWNIE AJ

THURSDAY 16 AUGUST 2001

030014/01 - JOINT COAL BOARD v THE PRESIDENT, ANTI-DISCRIMINATION BOARD OF NEW SOUTH WALES & ANOR

JUDGMENT

1 HIS HONOUR: This is an application under s 65 of the Supreme Court Act 1970 relating to a decision made by the first defendant accepting two complaints made under the Anti-Discrimination Act 1977. 2 A Dr Koelmeyer wrote a letter to the first defendant dated 2 February 1999. That letter has been treated as a complaint within the meaning of s 88 of the Act, or perhaps more accurately two complaints; one of racial discrimination, and one of victimisation. Each complaint was made out of time. Section 88(3) of the Act provides that a complaint shall be lodged within six months after the date on which a contravention of the Act occurs. Section 88(4) provides that notwithstanding sub-s (3), the president, on good cause being shown may accept a complaint which is lodged more than six months after the date referred to in at that subsection. 3 The plaintiff says in brief now, that the decision made by the first defendant to accept the complaints ought not to have been made. If one goes back to the letter of Dr Koelmeyer, treating it, as I think one must, as a complaint, there is first a complaint which has been taken to be a complaint of racial discrimination, in that he complained that on some unspecified date, apparently between 30 August 1996 and 6 November 1996, he was not notified of a vacant position, so that he lost the opportunity to apply for appointment to that position. 4 Officers of the Anti-Discrimination Board treated the letter as containing a second complaint, that of victimisation, in that after the complainant protested about the discrimination in the form of racial discrimination, he was effectively retrenched from the employment of the plaintiff. His retrenchment took effect from 4 January 1999. His letter of complaint was received by the Board, it seems, on 8 February 1999. 5 An employee of the Board, Ms Norath, made a recommendation to the first defendant that the first defendant accept the complaints under s 88(4). The first defendant countersigned the written recommendation, and the hearing has proceeded on the basis that the first defendant accepted the recommendation of Ms Norath, and that he read and considered all of the material that was before him. In effect, that was a copy of the complete file of the Board. 6 The plaintiff, in summary, makes three complaints about the decisions. The first is that the first defendant, through Ms Norath, allowed a consideration of the merits of the complaint of racial discrimination to affect his decision, whether or not to accept the complaints out of time. 7 The parties referred me to the decision of Levine J in McAuliffe v Puplick (1996) EOC 92-800, and to the decision of Adams J in Fraser v President, Anti-Discrimination Board [2000] NSWSC 1083. Adams J accepted as correct the reasoning of Levine J, and the parties in the present case I think also accepted that reasoning as correct. Levine J discussed the terms of the statute, and in the circumstances of that case concluded that it was not correct to consider the merits of Ms McAuliffe's complaint, when deciding whether or not to accept the complaint lodged out of time. 8 In the present case, Ms Norath made a written recommendation to the first defendant. It is I think clear that officers of the board, having regard to earlier judicial decisions, have devised a form of procedure calculated so far as possible to ensure that decisions of the first defendant are made in a way which complies with the legislation, as it has been interpreted judicially. 9 The recommendation in question here contains a set of headings with material set out under each heading. The headings in question are: 1. Facts 2. Lodgement date and length of delay 3. Complainant's explanation for delay in lodging complaint 4. Prejudice to complainant if not able to pursue complaint 5. Prejudice to respondent if complaint is accepted. 6. Other relevant considerations 7. Recommendation. 10 Under the heading "Facts", Ms Norath summarised things that had been conveyed to her by the complainant in his original letter of complaint, and subsequently orally. In that part of the recommendation, Ms Norath said that the complainant had made various allegations. They were set out separated by bullet points. The allegations of the complainant were: 1. That he was not notified of the vacancy I mentioned earlier. 2. That he later saw an entry in a diary which he identified and which he said listed the reasons why he would not have been successful had he applied for the position in question followed by three other matters. 11 The parties have proceeded today on the basis that it is not, at least generally speaking, proper for the first defendant to take into account matters going to "merit", rather than "good cause", that is to say, distinguishing between the "merit" in relation to the ultimate resolution of the complaint, and the satisfaction of the first defendant that "good cause" has been shown for his making a decision under s 88(4). 12 In the circumstances of this case, it seems to me that it is not possible to draw a stark distinction between "merit", and "good cause". In order to consider whether a decision should have been made under s 88(4) accepting the complaint out of time, the first defendant needed to consider why it was that the complainant had allowed his complaint to be lodged out of time. The reason which the complainant advanced was that, as he perceived matters, he needed to be able to refer to the entries in the diary in order to prove his complaint of racial discrimination. 13 When therefore Ms Norath was making a recommendation to the first defendant, she referred to these matters generally both under the heading "Facts" and under the heading "Complainant's explanation for delay in lodging complaint". Accepting as I do that generally speaking there is an important distinction to be drawn when considering whether to accept a complaint under s 88(4) between "merit" and "good cause", I consider that in the particular circumstances of this case, it is necessary to recognise that facts and circumstances overlap between the two categories. 14 The reason why according to the complainant his complaint should have been accepted under s 88(4), was his perception that he could not use the diary and its entries at the time. It was therefore appropriate for the first defendant to consider the circumstances relating to that allegation. Those circumstances included, it seems to me, the existence of the diary and what it was that at least in the perception of the complainant, the diary recorded, helpful or possibly helpful to him, in proving his complaint of racial discrimination. 15 It seems to me therefore that it would have been wrong for the first defendant to totally exclude from consideration all of the circumstances relating to the diary. He had, it seems to me, at least to consider what it was that in the perception of the complainant led to the complainant not attempting to use the diary and its entries by way of evidence until after the complainant left the employment of the plaintiff. 16 The second matter to which the plaintiff now points, is the proposition advanced by Ms Norath in her recommendation, that the complainant had no other jurisdiction within which he might pursue his complaint. 17 It seems to me that in a sense, this is incorrect. The complainant might have sued for example in the District Court, for damages for wrongful dismissal, but that seems to me to be quite a small matter in all the circumstances, indeed, almost a trivial matter. He was, it seems, retrenched upon six months notice. Uninstructed by evidence, it seems to me that if he was entitled to damages at all, they would probably only be nominal damages. He would not, as it seems to me at the moment and on the evidence now before me, be entitled to allege in proceedings of that kind, any of the elements of his complaint of racial discrimination. 18 The third matter to which the plaintiff now points, is the question of prejudice. There really is no doubt, but that there is a form of presumptive prejudice, where there is a long delay. (See the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor, (1996) 186 CLR 541 at 551 to 553). 19 However in this case, it is now more than a year since the Board wrote to the plaintiff. The plaintiff's solicitors replied suggesting that there might be prejudice, but now, more than a year after the first letter from the Board to the plaintiff, the plaintiff has put forward no evidence at all of actual prejudice. In the circumstances, I see no sound basis for making the order sought, proceeding on the assumption or basis that that was not a matter that was properly considered. 20 Weighing all these matters up, it seems to me that no ground has been demonstrated for the proper making of the orders sought, and I dismiss the summons with costs. **********