Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135 Hearing dates: 27 July 2011, written submissions 31 May 2012 Decision date: 06 July 2012 Jurisdiction: Equal Opportunity Division Before: J Wakefield, Judicial Member Decision: The Tribunal orders: 1.The complaint be amended pursuant to s. 103 of the Anti-Discrimination Act, 1977 to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010. 2.The Respondent's application under s.102 of the Anti-Discrimination Act, 1977 read with s. 92(1)(a)(i) and (ii) is dismissed. 3.The Applicant is to file and serve Points of Claim and any evidence within 28 days from the date of this Order 4.In default of compliance by the Applicant with Order 3 the complaint be dismissed in whole pursuant to s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(b). 5.On compliance with Order 3 the Registrar is requested to list the proceedings for a case conference on a date to be notified to the parties. Catchwords: DISCRIMINATION - on grounds of race - application to dismiss claim - lacking in substance; want of prosecution - repeated failure to comply with orders of Tribunal Legislation Cited: Administrative Decisions Tribunal Act 1977 (NSW) Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2009 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2008 (NSW) Crimes (Administration of Sentences) Regulation 2001 (NSW) Migration Act 1958 (Cth) Cases Cited: Barake v. Red & White Star Cabs Co-operative Limited t/as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222 Bassili v Star City Pty Ltd [2008] NSWADT 62 Bradley v State of New South Wales [2002] NSWADT 11 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Commissioner of Corrective Services v. Aldridge [2000] NSW ADTAP 5 Commissioner of Police New South Wales Police Service v Orr [2001] NSWADTAP 16 Contreras-Ortiz v Commissioner Department of Corrective Services [2008] NSWADT 308 Contreras-Ortiz v Commissioner Department of Corrective Services [2009] NSWADT 12 Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Docherty v The Smith Family [2011] NSWADT 26 Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Fairey v Fairey (No 2) [2001] NSWCA 173 Fei v Director-General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109 Fricke v Corbett Research P/L [2004] NSWADT 128 Harding v Vice Chancellor University of NSW [2003] NSWADT 74 Han v NSW Department of Health [2006] NSWADT 113 Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 Herber v Glen Henney & Son Pty Limited (No.2) [2007] NSWADT 230 Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179 Hoser v Hartcher [1999] NSWSC 527 Hurst v Star City Pty Ltd [2009] NSWADT 65 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Lunn v Storm Retirement Village (EOD) [2003] NSWADTAP 62 MacDonald v Publick [1998] NSWSC 428 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 Mohamed & ors v State of NSW (NSW Police Force) [2009] NSW ADT 51 Nicholls & Nicholls v Director General, Department of Education & Training (No.2) [2009] NSWADTAP 20 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Omeri v Quality Assurance Service Pty Limited (2003) NSWADT 188 O'Sullivan v Pehm [2010] NSWADT 57 Paramasivam v Vice Chancellor University of New South Wales [2003] NSWADTAP 2 Prakash v Bob Borg Enterprises Pty Ltd [1999] NSWADT 73 Purvis v State of New South Wales [2003] HCA 62 Rae v Commissioner of Police, NSW Police Force (No2) [2010] NSWADT 36 Razaghi v Director-General NSW Department of Health & Anor [2005] NSWADT 202 Richard v Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSWADT 158 Robertson v Wentworth Area Health Service [2004] NSWADT 274 Salama v Qantas Airways Ltd [2002] NSW ADT 119 Spelson v George (1992) 26 NSW LR 666 State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102 Stamborough v. Woolworths Limited [2005] NSWADT 2003 Sullivan v State of New South Wales (NSW Police Force) [2009] NSWADT 2 Sydney University Post-Graduate Representative Association v. Minister for Transport Services [2006] NSWADT 83 Tredinnick v Wentworth Area Health Service [2000] NSWADT 172 Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 Category: Interlocutory applications Parties: Barry Whiteoak (Applicant) State of New South Wales (Department of Justice and Attorney General - Corrective Services) (Respondent) Representation: Counsel J Clark, M Gibian (supplementary submissions) (Applicant) N L Sharp (Respondent) McGowan Lawyers (Applicant) G Singer, Department of Justice and Attorney General (Corrective Services NSW) (Respondent) File Number(s): 101067 REASONS FOR DECISION Introduction 1This is an application by the Respondent for summary dismissal of the proceedings pursuant to s. 102 of the Anti-Discrimination Act 1977 (NSW) ("ADA"). Grounds of Application 2The Respondent raises the following grounds in support of its application: (1)the proceedings are lacking in substance (particularly since to the extent that there was discrimination, the Respondent has already taken appropriate steps to redress it and the remedy sought is not available); (2)the conduct, if proven, would not disclose a contravention of the ADA or the regulations; and (3)want of prosecution. Relevant Background 3The Applicant commenced a life sentence for murder on 16 September 1983. He has previous convictions for assault and indecent assault. On 16 December 1994, his life sentence was re-determined with the Applicant receiving a 15 year non-parole period. On 19 August 2008, his permanent residency visa was cancelled and he is to be deported at the end of his sentence. 4The Applicant is classified as a "serious offender" as defined by s.3 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("C(AS) Act"). All matters pertaining to his security classification and placement are managed by the Serious Offenders Review Council ("SORC"), which is constituted by s.195 of the C(AS) Act, and which makes recommendations to the Commissioner for Corrective Services ("Commissioner") relating to prisoners under its management. 5On 13 August 2002, the Commissioner's delegate approved a reduction in the Applicant's security classification from C2 to C3. This classification was maintained in decisions dated 24 September 2003, 11 December 2003 and 27 February 2004. 6On 28 December 2006, the Commissioner's delegate regressed the Applicant's classification from C3 to C1 following the introduction of a new policy of "Inmates of Interest to Immigration". The C1 classification was confirmed in decisions by the Commissioner's delegate on 2 December 2008, 4 December 2009 and 5 April 2010. 7The Applicant completed a sex offender treatment program called "Custody based intensive treatment program" ("CUBIT") on 29 January 2001. He then proceeded to undertake the CUBIT custodial maintenance program. He was later discharged from that program for misbehaviour on 5 February 2004. On 1 July 2009, CUBIT representatives treated the Applicant's attempt to defer undertaking CUBIT as a deemed refusal. Certain SORC and Probation and Parole Service reports in the evidence have asserted that the Applicant presents a moderate to high risk of re-offending and that his classification and placement would be reconsidered when the Applicant had completed CUBIT. Evidence 8The Applicant has filed no evidence. In support of the application for summary dismissal the Respondent relies upon: (1)The Affidavit of Ms Glenn Singer, a solicitor employed by Corrective Services (New South Wales) dated 29 March 2011 and Exhibit GS-1 to that affidavit; (2)Chapter 18 of Corrective Services New South Wales Operations Procedures Manual entitled "External Leave Programs Policy"; (3)President of the Anti-Discrimination Board ("ADB") Summary of Complaint ("Summary of Complaint") and bundle of documents filed in the Tribunal on 21 June 2010 ("President's Bundle"). History of the matter before the Tribunal 9The President of the ADB referred the complaint to the Tribunal pursuant to s.93C of the ADA on 17 June 2010. 10At a directions hearing on 4 August 2010 the Applicant was ordered to file and serve Points of Claim and evidence by 17 September 2010. 11The Applicant's then solicitor issued a Summons to Produce upon the Respondent on 17 August 2010. That summons was returnable on 27 August 2010. The documents to be produced were as follows: "1. The Applicant's Corrective Services file (MIN 103335), including but not limited to documents relating to all programs undertaken and completed by the Applicant and a list of day leave taken, and all Parole, SORC and classification decisions. 2. Copy of all policy documents relating to classification of inmates as C1, C2 and C3, both (i) currently in force; and (ii) in force as at 28 December 2006; 3. Criteria, procedures and guidelines relating to the CUBIT program both pre-2005 and post- 2005." 12The Respondent produced documents in answer to the summons. 13The Applicant failed to comply with the orders of 4 August 2010. On 14 September 2010 the Applicant was directed to file and serve his Points of Claim and evidence by 1 October 2010. He failed to comply with this order. On 1 December 2010 the Applicant was directed to file and serve his Points of Claim and evidence by 18 February 2011. He failed to comply with this order. 14By letter dated 1 December 2010, the Respondent advised the Applicant through his then solicitor, Mr Murphy, that on the basis of the Summary of Complaint, the Respondent considered that there were serious deficiencies in the Applicant's case and that the Respondent would, at an appropriate time, ask for the matter to be set down for the hearing of a summary dismissal application. The letter made reference to paragraph 16 of the Tribunal's Practice Note No. 19 Equal Opportunity Division: Practice and Procedure and noted that the appropriate time for making a summary dismissal application would be after the Applicant had filed and served his evidence. 15No evidence was filed on behalf of the Applicant in response to this letter. The Respondent by its letters dated 14 March 2011 and 16 March 2011 advised Mr Murphy that the Respondent was to file and serve its submissions on an application for summary dismissal by 18 March 2011 and that the Applicant was to respond to those submissions by 30 March 2011. He did not do so. 16On 17 March 2011, the Respondent consented to the Applicant's request (by his solicitor) that the deadline for compliance with the orders of 1 December 2010 be extended to 25 March 2011. The Applicant did not comply with the extended timetable. 17The Applicant has been legally represented from the commencement of proceedings including at the directions hearings. The Applicant by his solicitors has failed to respond to the Respondent's requests to identify when his Points of Claim and evidence would be filed. 18The application for summary dismissal was first listed for hearing on 6 May 2011. At that time, over the Respondent's objection, Mr Murphy sought and obtained an adjournment on terms that he take instructions from the Applicant as to the prosecution of the matter and in particular the Respondent's application for summary dismissal. It is uncertain whether this occurred. The Applicant's present solicitor, Ms McGowan, instructing Mr Clark of Counsel, was retained on the afternoon of 26 July 2011, the day before the adjourned hearing of this application. Mr Clark had previously been retained by Mr Murphy to provide a merits advice to Legal Aid, but briefed with no documents to enable him to do so. Mr Clark had not spoken with the Applicant nor did he believe had his instructing solicitor. 19The submissions and evidence on the Respondent's application had been forwarded to Mr Murphy under cover of the Respondent's letter dated 30 March 2011. By letter from the Respondent dated 11 May 2011 the Applicant was personally served at Long Bay Correctional Complex with a copy of the Respondent's Outline of Submissions on the application for summary dismissal together with Ms Singer's affidavit and the correspondence previously forwarded to his solicitor. The Applicant acknowledged receipt of these documents on 19 May 2011. 20As at the date of hearing, the Applicant had not filed or served Points of Claim or any evidence nor had submissions been served on the Applicant's behalf in response to the application for summary dismissal. 21While preparing its reasons for decision, the Tribunal considered that it would be assisted by submissions on the issue of whether the Applicant fell within the operation of Instruction No. 2/2009 entitled "Inmates of Interest to the Department of Immigration and Citizenship" issued by the Commissioner pursuant to s. 235B of the C(AS) Act on 23 March 2009 (Commissioner's Instruction). The Tribunal caused a letter to be issued by the Registrar on 23 March 2012 inviting the parties to make further submissions by 13 April 2012 in relation to two issues: (a) Whether, and if so on what basis, the Commissioner's Instruction applies to the Applicant; (b) If the Commissioner's Instruction does not apply to the Applicant pursuant to what policy was the Applicant's classification and management reviewed on 4 December 2009 and 15 April 2010. 22The Respondent filed supplementary submissions on 13 April 2012. The solicitor for the Applicant subsequently requested an extension of time to file submissions upon the issues raised in the Tribunal's letter. By letter dated 17 May 2012, the Tribunal wrote to the parties advising that the Applicant's request for an extension of time had been granted and that the Applicant was to file submissions restricted to those questions put to the parties in the Tribunal's letter dated 23 March 2012 by 31 May 2012. The Applicant filed submissions dated 31 May 2012 on 1 June 2012. The Applicant's claims of discrimination 23As has been indicated, the Applicant has filed and served no Points of Claim. The President's bundle contains letters from the Applicant to the President of the ADB dated 22 December 2008, 24 April 2009, 21 December 2009 and 1 June 2010. It appears from these documents that the Applicant complains that he was discriminated against on the ground of race (being his UK citizenship) by reason of the security classifications that were assigned to him ("the classification complaints"). He apparently relies on the Tribunal's decision in Contreras-Ortiz v, Commissioner, Department of Corrective Services [2008] NSW ADT 308 ("Contreras-Ortiz"). 24The period in which the discrimination is alleged to have occurred is from 28 December 2006 to April 2010. During this period, the Applicant was classified as follows: (1)following the SORC's 5 December 2006 recommendation, on 28 December 2006 the Commissioner's delegate regressed the Applicant's security classification from C3 to C1; (2)following the SORC's 2 December 2008 recommendation, on 15 December 2008 the Commissioner's delegate continued the Applicant's security classification as C1 and changed his placement from the MSPC to the Junee Correctional Centre; (3)following the SORC's 17 November 2009 recommendation, on 4 December 2009 the Commissioner's delegate did not accept that recommendation and classified the Applicant as a C1 and placed him at Junee Correctional Centre; (4)following the SORC's 16 March 2010 recommendation, on 15 April 2010 the Commissioner's delegate did not accept that recommendation and classified the Applicant as a C1 and placed him at Junee Correctional Centre. 25In the Applicant's letter to ADB dated 22 December 2008 he asserts that the Commissioner's 2005 policy concerning inmates who are of interest to immigration ("Old Inmates of Interest to Immigration Policy") resulted in the regression of the Applicant's C3 classification to C1. He stated: "[t]he new policy took away my Day Leaves and reduced my classification down to C1; this in effect meant that I was no longer able to meet one of the requirements of the Parole Board". The Applicant is seeking that the ADB "help [him] in regaining [his] C3 classification and Day Leaves as Day Leaves are a major part of the Pre-Release Program that the Parole Board requires inmates to do before being granted parole". In the same letter, the Applicant referred to a decision by the "Immigration Department" to cancel his "Permanent Residential [sic] Visa" and deport him on being granted parole. He felt this decision was "strongly racist" ("the Immigration complaint"). 26In his letter dated 24 April 2009 to the ADB, the Applicant confirmed that he did wish to proceed with the complaint. He repeated that his complaint concerned the regression of his classification from C3 to C1 on the basis that he was of interest to the "Immigration Department" saying: "[i]t is discrimination because the policy decisions are treating me differently to what an Australian citizen is treated". Referring to the Immigration complaint he asserted that the decision: "was based solely on the fact that I am a British subject who is in gaol and not on my offensive behaviour". The Applicant said that the decision to cancel his "Permanent Residency Visa" and deport him was "clearly discrimination where a foreigner who has spent time in gaol is different to an Australian who has also spent time in gaol". 27By letter dated 21 December 2009 to the ADB the Applicant requested that the Board continue with the discrimination case "to see if you can get my C3 reinstated". 28In his letter dated 1 June 2010 to the ADB the Applicant said: "I do not want monitary [sic] compensation as the change in classification has not cost me any money. I want you now to use all the powers available to you and your organisation to persuade and or force the Corrective Services to change inmates classifications back". 29The Summary of Complaint has categorised the classification complaint as to breaches of ss 7, 19 and 53 of the ADA. The Summary of Complaint reports that the Immigration complaint has not been accepted for investigation and was not the subject of the President's recommendation. 30The Applicant apparently makes no claim for indirect discrimination. The Tribunal notes that the indirect discrimination case had been rejected by the Tribunal in Contreras-Ortiz at [146-175]: see also Richard v Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSW ADT 158 at [122]. Procedural Matter 31There is a procedural issue arising in respect of the classifications in 2009 and 2010. It appears from the President's bundle that the ADB received the complaint from the Applicant alleging discrimination on the grounds of race and the provision of goods and services on 23 December 2008. The period of complaint is said to be from 28 December 2006 until 24 April 2009 and covered the 2006 and 2008 classification decisions. The 24th April 2009 is apparently a reference to the further letter received from the Applicant which made reference to the complaint. 32As Simpson, J held in MacDonald v. Publick [1998] NSWSC 428 neither the President nor the Tribunal has any relevant power or function other than in relation to a "complaint". Generally, a complaint cannot include acts occurring after the complaint was lodged. See also Wollongong City Council v. Bonella & Ors and Bonella & Ors v. Wollongong City Council (EOD) [2002] NSWADTAP 26 at [75], Richard v. Director General, Department of Justice and Attorney General (Corrective Services NSW) [2011] NSWADT 158 at [51]. 33Section 87 ADA provides that "complaint" means a complaint made under s. 87A and includes a matter referred to the Tribunal under s. 95(2). Section 87A ADA provides relevantly: "(1) A complaint alleging that a named person has, or named persons have contravened the provisions of this Act or the regulations ... may be made by any one of the following: one or more persons; on his/her or their own behalf, or on his, her or their own behalf as well as on behalf of another person or persons, ....." The complaint the subject of these proceedings is a complaint within the meaning of s. 87A of the ADA. 34This situation was not altered by the enactment of the Anti-discrimination Amendment (Miscellaneous Provisions) Act 2004 which provided for s. 91C to permit the President of the ADB to amend a complaint after it has been made. Unless the powers contained in s. 91C or s. 103 of the ADA have been exercised, it is not possible for a complaint to encompass conduct which occurred after the date upon which the complaint was initially made: see Sydney University Post Graduate Representative Association (SUPRA) & Ors v. Minister for Transport Services & Ors [2006] NSWADT 83 at [22] - [24]. 35Section 91C provides: "91C. Amendment of Complaint (1) If, at any time after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal: (a) the person making the complaint seeks to amend the complaint, or (b) the President becomes aware of information that could conveniently be dealt with as part of the complaint, the person making the complaint is to be offered the amend the complaint. (2) An amendment may be made in writing but, if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint. (3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended...." 36Additionally, s.103 ADA provides: "103. Tribunal may amend complaint The Tribunal may, on the application of a party to the complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. A complaint may be amended to included additional complaints and anything else that was not included in the complaint as investigated by the President. An amendment may be made subject to such conditions as the Tribunal thinks fit." 37There is no material in the President's bundle which evidences an amendment to the complaint or notification by the President to the Respondent of the substance of any amendment pursuant to s. 91C of the ADA. The Respondent apparently received a letter from the President on 10 February 2010 requesting clarification as to why the Applicant did not resume his prior classification of C3 upon the issue of the Commissioner's Instruction in February 2009. The Respondent provided a response which apparently refers to the complaint as it was originally notified. The letter from the President to the Respondent dated 10 February 2010 is not in the President's bundle. 38The Applicant has not made application to the Tribunal to amend the complaint. The question is whether the Tribunal should do so of its own motion. 39The issue of amendment was not raised at the hearing. Mr Clark on behalf of the Applicant, having been briefed with no papers in the matter, was not in a position to make submissions as to any substantive matter including the question of amendment. The Respondent in its submissions approached the complaints on the basis of and made submissions concerning the four security classifications including those in 2009 and 2010 after the complaint. It came prepared and was able to deal with all four grounds at the hearing. In so far as it has been afforded procedural fairness, the Applicant would not be prejudiced by such an amendment. 40It is plainly in the interests of the parties and the interests of justice at a saving of the time and the cost of different proceedings concerning the 2009 and 2010 classifications that the matters raised by the Applicant after lodging the complaint, being the later classification decisions, be included in the complaint. The Tribunal considers it appropriate in the circumstances to amend the complaint under s. 103 of ADA to the extent necessary so as to include in the complaint the Respondent's classification decisions on 4 December 2009 and 15 April 2010. An order to this effect will be included in the orders made by the Tribunal on the application. The Classification Process 41It is useful to set out the process by which inmates are classified and a helpful summary of this was contained in the Respondent's written submissions. 42Part 2.2 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) ("Regulation") deals with inmate case management and classification. By clause 12(2) of the Regulation the Commissioner must prepare an inmate's first case plan as soon as practicable after the inmate is received into the correctional centre. 43Clause 13(1) of the Regulation provides that a case plan must indicate: (1)the inmate's classification; (2)the correctional centre at which the inmate will be placed; and (3)the services and programs in which the inmate should be encouraged to participate. 44Clause 13(3) of the Regulation sets out matters to which regard must be had in formulating any inmate's case plan. The case plan includes the inmate's classification. These matters include: "(c) whether or not the inmate is likely to be deported from Australia ..." 45Clause 29 of the Regulation specifies information that must be considered concerning classification as follows: "For the purpose of making any decision with respect to a person's classification under this Division, consideration must be given to any advice received from the NSW Police Force or from any other public authority (whether of this or any other State or Territory or of the Commonwealth) established for law enforcement, security or anti-terrorist purposes." 46Clause 14 of the Regulation empowers the Commissioner to nominate a departmental officer to prepare recommendations for a case plan (including as to classification). Clause 15 of the Regulation empowers the Commissioner to nominate a review officer to prepare a report on the recommendations. Clause 17 of the Regulation provides that the Commissioner must adopt a case plan for an inmate after considering the report prepared by the review officer. The Commissioner is not bound to follow the recommendations in the report. 47Clause 22(1) of the Regulation imposes an obligation on the Commissioner to classify each male inmate to one of the categories provided for in that clause. These classifications are in descending order of security from highest to lowest security risk: AA, A1, A2, B, C1, C2 and C3. By cl.22(2), the Commissioner may at any time vary or revoke a classification order made under cl.22(1). 48The legal obligations concerning classification are supplemented by Corrective Services NSW policy outlined in the Inmate Classification and Placement Procedures Manual (November 2005 Interim) ("Classifications Manual"). The Classifications Manual is Chapter 2 of the Corrective Services NSW Operations Procedures Manual ("OPM"). The Commissioner's delegations referred to above are outlined in Chapter 9 of the Classifications Manual. 49Where the Applicant is a "serious offender" recommendations as to classification are made by SORC. A decision is then made by the Commissioner or his delegate. 50Chapter 18 of OPM is entitled "External Leave Programs Policy". Section 18.1.7 provides that to be eligible for an external leave program an inmate must have a C3 classification. Section 18.1.9 makes special provision for those inmates identified as sex offenders: "Prior to considering participation in an External Leave Program, the CMT must ensure that a risk assessment has been undertaken and any other Departmental policy requirements regarding sex offenders are fulfilled. NB. The risk assessment must be in the low to moderate range for the inmate to be considered for a C3 classification and participation." 51Section 18.1.11 of Chapter 18 provides: "Serious Offenders/Public Interest Inmates will only be permitted to participate in External Leave Programs if the Commissioner has granted approval following consideration and recommendation from the Serious Offenders Review Council (SORC) or its sub-committee the Pre-release Leave Committee (PRLC) for their participation." The Commissioner's Old Inmates of Interest to Immigration Policy 52From around 1 November 2005 until 23 March 2009, the policy of the Commissioner in relation to "inmates of interest to immigration" who were "Unlawful Non-Citizens" provided that "Unless exceptional circumstances suggest otherwise, no inmate should be considered for a progression to "C3/Category 1" or for the issuing of a section 6(2)/26 order enabling work or program activity outside a correctional centre". (Contreras-Ortiz at [4], [27]). This policy was restated in a memorandum from the Commissioner dated 28 March 2006 (Contreras-Ortiz at [28]) and again in a memorandum from the Commissioner dated 19 May 2006 (Contreras-Ortiz at [28]). The policy was inserted into the Classifications Manual at section 18.1.14 in December 2006 (Contreras-Ortiz at [28], [31]). The Commissioner's New Inmates of Interest to Immigration Policy ("New Inmates of Interest to Immigration Policy") 53On 20 January 2009 in Carlos Contreras-Ortiz v. Commissioner, Department of Corrective Services [2009] NSW ADT 12 ("Contreras-Ortiz [No 2]") the Tribunal exercised its power under s.108(3) of the ADA to make an order of general application affecting persons other than the complainant in the following terms: "1. The first and second respondents be enjoined from: (a) discriminating against inmates on the ground of their race by refusing to provide the following services: (i) providing development programs, including development programs involving work or employment outside a correctional centre; (ii)considering whether those inmates should be permitted to participate in development programs, including development programs involving work or employment outside a correctional centre; (iii) finding work or employment for those inmates, including work or employment outside a correctional centre; (iv)considering whether to find work or employment for those inmates, including work or employment outside a correctional centre; (v)varying the classification of inmates for the purposes of the provision of appropriate development programs; (vi)considering whether the classification of inmates should be varied for the purposes of the provision of appropriate development programs; (vii)considering exercising the powers or functions conferred by sections 6 and/or 26 of the Crimes (Administration of Sentences) Act 1999 (NSW) and/or clause 22 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) in relation to particular inmates; and (b) discriminating against inmates on the ground of their race in the terms on which the services referred to in (i) are provided; and (c) authorising, instructing or permitting their servants or agents to engage in the conduct referred to in (i) or (ii)." 54In the principal proceedings, Mr Contreras-Ortiz, a Columbian citizen and inmate, had contended that he was denied access to work release or other release programs which required a "C3" classification because of his status as an "Unlawful Non-Citizen". Under the Old Inmates of Interest to Immigration Policy in the absence of "exceptional circumstances" he could not be considered for progression in classification. He claimed that this was discriminatory on the grounds of race. 55The Tribunal found that the assigning of a classification to a prisoner is a "service" within the operation of ss.4 and 19 of the ADA: at [129] and accepted that citizenship was an aspect of "race" for the purposes of the ADA: at [66]. The Tribunal concluded that the Respondent had contravened s. 19(a) and (b) of the ADA: at [176]. 56On 23 March 2009 in response to the decision in Contreras-Ortiz, the Commissioner issued the Commissioner's Instruction. 57The Commissioner's Instruction defines "Inmates of Interest to DIAC" as including inmates who are not Australian citizens and who are serving a total sentence of 12 months or more. 58The Commissioner's Instruction provides relevantly: "Inmates who are non-citizens and who remain of interest to DIAC in that they are to be deported/removed ... are to be managed as follows. i) Unlawful Non-Citizen "Unlawful Non-Citizen" refers to an inmate who had no valid visa at the time of his or her incarceration. A recent decision by the Administrative Decisions Tribunal has determined that it is discriminatory to automatically exclude all Unlawful Non-Citizens from progression below C1/Category 3 classification and from access to programs outside a correctional centre. Accordingly, "Unlawful Non-Citizens" have been added to the 'Public Interest Criteria' for the purposes of considering an inmate's progression to work or programs outside a correctional centre. Consequently, the Classification and Case Management review Co-ordinator must refer all Unlawful Non-Citizen inmates to the Pre-Release Leave Committee (PRLC), a sub-committee of the Serious Offenders Review Council, for consideration of progress beyond C2 D or Category 2D or for the issue of a section 6(2)/26 order. The PRLC will make a recommendation to the Commissioner for his determination ... ii) Lawful Non-Citizen "Lawful Non-Citizen" refers to an inmate who has a valid visa but is not an Australian citizen. The Classification and Case Management Review Co-ordinator must refer all Lawful Non-Citizens who are of interest to DIAC and who are not managed by SORC or any of its sub-committees to the Director, Inmate Classification and Case Management for consideration of progress to C3 or Category 1. The Director will convene a "Directors Review Committee" to make a final determination on the inmate's suitability for progression. Each case will be considered on its merits." The Claims for Dismissal The s.92(1)(a) claims 59Section 102 of the ADA provides: "The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i)or(ii)or(b)." 60In turn, s.92(1) of the ADA provides: "If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or .... (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint." Exercise of the power to dismiss a complaint 61The power to dismiss a complaint summarily under s.102 of the ADA have been considered extensively by the Tribunal. The Tribunal has adopted a careful approach and emphasised that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action. See Commissioner of Police, New South Wales Police Service v Orr [2001] NSW ADTAP 16; Razaghi v Director General, Department of Health & Anor [2005] NSW ADT 202; Han v NSW Department of Health [2006] NSW ADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSW ADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSW ADT 179; Bassili v Star City Pty Ltd [2008] NSW ADT 62; Mohamed & ors v State of NSW (NSW Police Force) [2009] NSW ADT 51; Hurst v Star City Pty Ltd [2009] NSW ADT 65; Rae v Commissioner of Police, NSW Police Force (No 2) [2010] NSWADT 36 at [84]. 62As Pritchard JM observed in O'Sullivan v. Pehm [2010] NSW ADT 57 at [52], the Tribunal's approach is consistent with the principles applicable to the inherent jurisdiction to terminate an action summarily as articulated by the High Court in General Steel Industries Inc v. Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [129-130]. 63In exercising the power to dismiss summarily the Appeal Panel in Lunn v. Storm Retirement Village (EOD) [2003] NSW ADTAP 62 at [20] adopted the approach of Ormiston JA in State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at [109] where it was held concerning a provision similar to s.92(1)(a)(i) of ADA in Equal Opportunity Act, 1984 (VIC) that: "In the absence of a proper hearing at which the Complainant has an opportunity to call all relevant evidence, there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end." 64The Tribunal in Omeri v. Quality Assurance Service Pty Limited [2003] NSW ADT 188 at [20] noted (in respect of the precursor to s.102) that: "The standard of satisfaction for a Section 111 application is quite high. The Tribunal must be satisfied in effect that the complaint has no chance of succeeding on the evidence as set out before it." 65The Tribunal in Fricke v. Corbett Research P/L [2004] NSW ADT 128 found at [36]: "It has been suggested that 'prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis...'" Ehl v. Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at para.14. See also Dee v. Commissioner of Police & Anor (2003) NSW ADT 217 at para. 24." 66The Tribunal further found at [38] that: "The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there are grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the Respondent's evidence will be called." 67This approach was adopted in Han. 68The Tribunal in Fricke found at [35] that: "Ultimately it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case." 69Additionally, there is a special need for caution where, as in this case, the dismissal application is made prior to the adducing of the Applicant's evidence at the substantive hearing: see Karekar v. TAFE Commissioner of New South Wales [2000] NSW ADT 187 at [36]; Tredinnick v Wentworth Area Health Service [2000] NSW ADT 172 at [33]; Bradley v. State of New South Wales [2002] NSW ADT 11 at [30]; Robertson v. Wentworth Area Health Service [2004] NSW ADT 274 at [28]. 70Relevantly, summary dismissal is not appropriate where there is a serious question of fact to be tried. See Spelson v. George (1992) 26 NSW LR at [666], Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 and the discussion in Barake v. Red & White Star Cabs Co-operative Limited t/as Maitland, Beresfield & Raymond Terrace Taxi Services [2011] NSWADT 222 at [20]-[23]. In the absence of extraordinary circumstances disputed questions of fact should not be dealt with in a summary dismissal application; Stamborough v. Woolworths Limited [2005] NSWADT 2003 at [28]. Respondent's Submissions 71In general terms, the Respondent submits that the classification complaints are either "lacking in substance" within the meaning of s.92(1)(a)(i) of the ADA, or that they would "not disclose the contravention" of a provision of the ADA or the regulations within the meaning of s.92(1)(a)(ii). The Respondent concedes that the 2006 and 2008 classifications would be found to be discriminatory in light of the decision in Contreras-Ortiz . However, the Respondent submits that to the extent the Applicant's complaint does disclose discriminatory conduct, including in respect of the 2009 and 2010 classifications, the Commissioner by issuing the Commissioner's Instruction has already taken appropriate steps to remedy and redress that conduct. The Respondent submits that the Commissioner's Instruction is evidence of there being no discriminatory intent concerning the 2009 and 2010 classifications as it provides for classifications to be considered on their merits. The Respondent submits that in circumstances in which no other relief is sought dismissal of the complaint is clearly warranted. Applicant's Submissions 72At the hearing, Counsel for the Applicant, Mr Clark, advised the Tribunal that he was not in a position to make submissions upon the Respondent's substantive application. In fairness to Mr Clark, although he had been retained in the matter by Mr Murphy, he was yet to be provided with or have the opportunity to review any documents. Given the history of the matter before the Tribunal, including that the Respondent apparently served the relevant materials upon Mr Murphy by letter dated 30 March 2011, that the Applicant had personal notice of the application and the Respondent's submissions from no later than 19 May 2011 and that the application had already been adjourned once, the Tribunal determined that it was appropriate to allow the application to proceed. Mr Clarke made some submissions on the exercise of the discretion to dismiss the proceedings for want of prosecution to which the Tribunal will refer below. When a complaint is lacking in substance 73A number of authorities have considered when a complaint is "lacking in substance". In Harding v. Vice Chancellor, University of NSW [2003] NSW ADT 74 at [24] the Tribunal set out the following principles which it considered should be applied in determining whether a complaint lacked substance: "The Respondent to the complaint bears the onus of showing that the complaint should be dismissed; A complaint will be lacking in substance when there exists no factual basis for the allegations, or the allegations lack merit: See Langley v. Niland & Anor: [1981] 2 NSWLR 104 at 107; Reyes-Gonzalez v. Sydney Institute of Technology (1998) NSW EOT (6 March 1998) at 6; A complaint lacks substance if it contains 'an untenable proposition of law or fact': State Electricity Commissioner of Victoria v. Rabel [1998] 1 VR 102 at 108-109 per Ormiston J.A.; If the Tribunal can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated. The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action." 74In Karekar v. TAFE Commission of NSW [2000] NSW ADT 187 the Tribunal agreed that it was appropriate to describe the complaint as "lacking in substance" if it can be demonstrated or that the allegations lack merit. 75The Tribunal held at [35]: "In undertaking this examination we believe that the appropriate way forward is to take the complainant's evidence at its highest point or, in other words and for the purpose of this exercise, to accept that everything which the complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence and in the circumstances of this case, the Tribunal should evaluate the evidence as if a 'no case' submission has been made at the conclusion of the complainant's evidence. If at the end of this exercise the Tribunal concludes the complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the complainant has misunderstood legal principles or has been advancing an untenable proposition of law or fact." 76This approach was followed in Salama v. Qantas Airways Ltd [2002] NSW ADT [2002] NSW ADT 119. 77In Paramasivam v. Vice Chancellor, University of New South Wales [2003] NSW ADTAP 2 at [25] the Appeal Panel found that: "... the complaint, in legal terms, comprises the evidence that exists to support it. If that evidence does not support the factual allegations or, even if they do, if the factual allegations do not comprise a breach of the ADA, the complaint 'lacks substance'." 78In O'Sullivan v Pehm [2010] NSWADT 53 at [57] the Tribunal adopted the observation of Ormiston JA in Rabel who considered the expression "lacking in substance" to connote "an untenable proposition of law or fact". His Honour continued "If one may discern, in these provisions, an attempt to express the powers of tribunals in non technical language, then .... "lacking in substance" might seem to represent a claim where the Defendant could obtain summary judgment ...." . The Tribunal in Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [34] observed that this was a helpful description "which will assist the Tribunal to determine whether the complainant is .... "lacking in substance"". See also Barake at [26]. 79Taking these authorities into account, in order to succeed on the application on the ground that the complaint is lacking in substance, the Respondent would need to establish that there is no factual basis for the allegations comprising the complaint, that those allegations lack merit or that the Applicant's complaint encompasses an untenable proposition of fact or law. In considering the exercise of the power to dismiss, the Tribunal is to exercise exceptional caution particularly as the application is made prior to the adducing of the Applicant's evidence. The evidence or such material as might be converted into evidence in the Applicant's case is to be taken at its highest. Whether there is a factual basis for the Allegations 80Section 19 of ADA provides that: (1) "It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods and services, or (b) in the terms on which the other person is provided with those goods and services". 81Relevantly, s.7 of ADA provides that: (1) "A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race ..., or (b) ..... (c) requires the aggrieved person to comply with the requirement or condition with which a substantially higher proportion of person is not of that race .... comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of sub-section (1)(a)...something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race." 82In bringing the application for dismissal, the Respondent conceded that the Applicant's classifications on 28 December 2006 and 15 December 2008 would be found to be racially discriminatory in breach of s.19 ADA in line with the decision in Contreras-Ortiz because they were the result of the application of the Old Inmates of Interest to Immigration Policy. There is in the evidence a letter from the Commissioner to the ADB dated 29 June 2009 advising that "on 28 December 2006, inmate Whiteoak was regressed from a C3 to C1 classification. This decision was in line with the Department policy at the time." 83The conduct found to be discriminatory in Contreras-Ortiz was the requirement under the Old Inmates of Interest to Immigration Policy that an "Unlawful Non-Citizen" could not progress to C3/Category 1 or for the issuing of a s. 6 (2) / 26 order enabling work or program activity outside a correctional centre "unless exceptional circumstances suggest otherwise". The policy provided that: "Unlawful Non-Citizens include those holding a visitor's visa, a student's visa, a study visa, a work visa and illegal immigrants. Additional visa types may place the inmate in this category" : Contreras-Ortiz at [27]. 84Notwithstanding the Applicant's concession as to discriminatory conduct, it is not clear to the Tribunal on the basis of the material before it whether the Applicant was in fact an Unlawful Non-Citizen and subject to the "exceptional circumstances" requirement under the Old Inmates of Interest to Immigration policy considered in Contreras-Ortiz. There is evidence that at least as at 14 July 2006, the Applicant was the holder of a Permanent Resident's visa. The Applicant's visa was cancelled on 19 August 2008 and he holds a bridging visa. Additionally, the Respondent has proceeded upon the basis that the Applicant was a Lawful Non-Citizen for the purposes of its submissions on the operation of the Commissioner's Instruction. 85If the Applicant was a "Lawful Non-Citizen" and had a permanent visa but who had not been naturalised, the Old Inmates of Interest to Immigration policy provided that such an inmate "may be considered for the issue of a s. 6(2)/26 order enabling work or program activity outside the correctional centre. Such inmates may progress to C3/Cat 1 security level. Recent advice from the DIMA should be included with documentation from the Council to the Commissioner in the case of serious offenders and public interest inmates or with documentation to the Directors' Committee in the case of all other inmates".Contreras-Ortiz at [25]. Lawful Non-Citizens were not subject to any "exceptional circumstances" requirement under the Old Inmates of Interest to Immigration policy. 86No ultimate finding can be made as to the Applicant's status for the purposes of the operation of the Old Inmates of Interest to Immigration policy in the absence of further evidence nor should any finding be made without hearing from the parties. For the purposes of this application, the Tribunal accepts the Respondent's concession that there is a factual basis for the allegation in respect of the classifications in 2006 and 2008. 87Turning to the 2009 and 2010 classifications, in order to succeed in his claim for direct discrimination under s.19 ADA, the Applicant will, in general terms, need to establish that, in the course of providing a service, the Respondent treated the Applicant less favourably than, in the same circumstances or circumstances which were not materially different, the Respondent treated or would treat a person of a different race and that such treatment was on the grounds of his race. In other words, adopting the test in Richard at [118], if there is differential treatment of the Applicant on the grounds of his United Kingdom citizenship this would amount to direct discrimination on the grounds of race under s.7(1)(a) of the ADA. 88 The Tribunal in its decision in Contreras-Ortiz at [86-131] exhaustively considered the question of whether the Respondent's functions relating to classification of inmates and the provision of work and local leave permits under ss.6 and 26 of C(AS) Act constituted "services" within the meaning of ss.4 and 19 of the ADA. See also Richard at [79]. 89As in Richard at [80], the Respondent in this matter did not seek to argue either that the Tribunal's decision in Contreras-Ortiz was wrong or that the Respondent did not provide services falling within ss.4 and 19 of the ADA. As was the case in Richard at [81] the Tribunal finds that its reasoning in Contreras-Ortiz on the issue of the provision of services is entirely applicable having regard to the facts of the present matter and should be adopted. The Respondent's functions relating to classification of inmates and the provision of work and local leave permits under ss.6 and 26 of C(AS) Act are "services" within the meaning of s.4 of the ADA. There is no issue that the 2009 and 2010 classifications were made and accordingly, it is appropriate to conclude that the Respondent did provide those services within s.19 of the ADA. 90The definition of "race" in s.4(1) of the ADA includes "nationality". The Tribunal has adopted the approach of treating the terms "citizenship" and "nationality" as synonymous: see Sydney University Post-Graduate Representative Association v. Minister for Transport Services [2006] NSW ADT 83 at [62] and [63], Contreras-Ortiz at [66] and Richard at [118]. Accordingly the Applicant's citizenship of the United Kingdom is an aspect of race for the purposes of ss. 7 and 19 of the ADA. 91The appropriate test for direct discrimination was considered in Commissioner of Corrective Services v. Aldridge [2000] NSW ADTAP 5 at [41] ff. The Appeal Panel confirmed there to be two key components of a successful allegation of direct discrimination; the first being differential treatment and the second causation. Differential treatment is to be considered first and if there is no differential treatment then it is unnecessary to consider causation: see Herber v. Glen Henney & Son Pty Limited (No 2) [2007] NSWADT 230 at [24-25]. 92On a review of the authorities concerning what constitutes differential treatment, the Appeal panel in Aldridge at [44] found that the appropriate question to be asked was; "Did the [Respondent], on the ground of race..., treat [the Applicant] less favourably than [it] treated or would treat [a person of a different race] in the same circumstances, or in circumstances which were not materially different?" 93As to causation, what constitutes "on the grounds of" involves a consideration of why the aggrieved person was treated as they were: See Purvis v. State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The focus is on the "true basis", the "genuine basis" (per Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for the treatment. 94In Nicholl & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSWADTAP 20, the Appeal Panel at [37] concluded that; "As for complaints of discrimination...[the] reason must have been a reason which, alone or in combination with other reasons, was the true basis for the treatment..." 95Where one of the reasons for an act done for two or more reasons consists of unlawful discrimination under the ADA, whether or not it is the dominant or substantial reason for doing the act, then for the purposes of the ADA the act is taken to be done for that reason: see s.4A ADA. 96The Applicant has filed and served no evidence. In addition to the President's Report and the correspondence from the Applicant to which the Tribunal has previously referred, the President's Bundle contains correspondence from the Department of Immigration and Citizenship, Commissioner's Instruction No2/2009, Chapter 18 of the OPM, correspondence between SORC and the Applicant and memoranda from SORC. The Tribunal has had regard to this material as well as the evidence filed on behalf of the Respondent. 97There is evidence that the 2009 and 2010 classification decisions in respect of the Applicant were based at least in part on the fact that the Applicant has not completed relevant sex offender treatment and accordingly his security risk of re-offending did not permit a different classification in line with s.18.1.9 of Chapter 18 of OPM referred to above. In his letter to the President of the ADB dated 12 April 2010 the Commissioner explained: "This decision was based on Mr Whiteoak not having recently completed [CUBIT] ... and the delegate's opinion that Mr Whiteoak presents with a moderate to high risk of sexually re-offending. An offender who poses such a risk is unsuitable for the environment and level of supervision consistent with a C2 or C3 classification. Once Mr Whiteoak completes CUBIT his classification and placement will be reconsidered. The decision for Mr Whiteoak to remain as a C1 notwithstanding the change in the policy in February 2009 is unrelated to his race or visa status." 98There is also contained in the evidence copies of correspondence from SORC to the Applicant dated 14 December 2009 and 23 April 2010 notifying him of the decisions that his security classification remained C1. In the first letter SORC states: "The Council encourages you to re-apply for and successfully complete the CUBIT program." In the second letter SORC stated: "The Council recommends that you successfully complete the CUBIT program before further progression in your security classification is considered." There is clear evidence that non-completion of the CUBIT program by the Applicant was at least one factor in the Respondent's decision concerning classification in the 2009 and 2010 classifications. 99The Applicant, on the other hand, submits that other evidence gives rise to real factual questions which should be tested at full hearing. The Applicant refers to the "Pre-release Report" dated 23 July 2009 apparently several months after the Contreras-Ortiz policy had been removed upon the Commissioner's Instruction. Mr Benjamin Neville, Acting Unit Leader of the Junee District Office of the Probation and Parole Service prepared a report recommending against release. "It is noted that the applicant had undertaken supervised pre release day leave prior to his classification being regressed in 2006 in light of his, at the time, undetermined status with the Department of Immigration. Mr Whiteoak has not, and is unlikely to achieve such a classification with respect to his removal from Australia upon his release from custody." 100Similarly, the Applicant makes reference to the "Pre-release Report" dated 13 July 2010 prepared by Ms Michelle Jordan, District Manager of the Long Bay Parole Unit of the Probation and Parole Service which recommended against release. This report was prepared more than a year after the introduction of the Commissioner's Instruction. Under the heading "CORRECTIONAL CENTRE HISTORY", subheading "Participation in Pre-Release Leave Programs", Mr Neville observed: "Given that Mr Whiteoak is subject to deportation on release from custody, he is unlikely to be able to participate in pre-release leave programs whilst in custody." 101The evidence to which the Tribunal has been referred by the parties is relevant to the issue of causation, namely whether the Applicant's treatment was on the grounds of race. However, prior to considering causation, it is necessary to determine whether the Applicant has been subject to differential treatment: see Herber above. 102The Respondent has submitted that there is no evidence of differential treatment. In order to consider that question, it is necessary to identify and consider the circumstances of the comparator and whether there is evidence to suggest that differential treatment has occurred. The Respondent has submitted that in order to establish a breach of s.19 ADA the Applicant would accordingly need to prove that his treatment upon classification was less favourable than an Australian inmate with a similar history of sexual offending, high risk recidivism and who displayed a reluctance to accept therapeutic treatment. The comparator issue was not otherwise explored in the Application. 103In Purvis the majority of the High Court, when considering the language of s.5 (1) of the Disability and Discrimination Act 1992 (Cth), which is in similar terms to that of s. 7(1)(a) of the ADA, held that "all the objective features which surround the actual intended treatment" of the aggrieved person are to be taken into account: in particular see [224] - [225]. In Contreras-Ortiz at [76] the Tribunal found that in applying Purvis "it is not possible to postulate a comparison of the circumstances of the treatment of the Applicant with the "same circumstances" in which an Australian citizen would be treated". This was because Australian citizens in detention cannot be persons of interest to Immigration, and not vulnerable to exclusion or deportation under the Migration Act 1958 (Cth) at the end of their imprisonment. 104The Applicant in Contreras-Ortiz submitted that the obvious analagous Australian citizen inmates would be those subject to a risk of extradition at the end of their imprisonment: Contreras-Ortiz at [77]. There was no argument that there were any material differences between the circumstances of Australian citizen inmates subject to extradition at the end of the term of imprisonment and who present a risk of escape in order to avoid prosecution and imprisonment in a foreign country, and the circumstances of non-citizens who presented a risk of escape to avoid deportation to a country of which they are citizens. 105Mr Pezzano for the Respondent in Contreras-Ortiz gave evidence that there was no blanket policy which applied to persons under threat of extradition and seeking re-classification or work release requiring them to demonstrate "exceptional circumstances": Contreras-Ortiz at [77]. It was in light of the concession by the Respondent and this evidence that the Tribunal was prepared to find that Australian citizens would be treated differently from the Applicant in "circumstances which are not materially different": Contreras-Ortiz at [78]. 106Identification of a comparator is crucial to the issue of differential treatment. It is unclear for the purposes of the present application whether the Respondent makes the same concession in respect of the comparator which it did in Contreras-Ortiz namely, that the Australian inmate comparator is subject to extradition at the expiration of his or her term of imprisonment. On the basis of the Respondent's submission, the Tribunal cannot assume that it does. 107For the reasons which follow, the Tribunal has also determined, taking the evidence comprised in the wording of the Commissioner's Instruction at its highest, that it would not apply. The parties have made no submissions as to the policy or regime pursuant to which the classification decisions in 2009 and 2010 were made if the Commissioner's Instruction does not apply. 108In the Tribunal's view differential treatment can only be considered after identification of the comparator and the classification policy to which the Applicant was subject. Otherwise there can be no comparison between any policy applied to the comparator and that applied to the Applicant to determine whether it was less favourable. These questions cannot be resolved on the materials currently before the Tribunal. 109As the Appeal Panel stated in Lunn at [18] "if factual issues are likely to be affected by evidence in possession of the Defendant, 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 Plaintiff has no direct evidence (Wickstead v. Browne (1992) 30 NSW LR 1)". 110If the comparator is that identified in Contreras-Ortiz it is to be expected that the Respondent would have in its possession evidence concerning the classification policy which applied to Australian inmates under threat of extradition. Additionally, it could be expected that there will be evidence of what classification policy did apply to the Applicant should the Tribunal ultimately find that the Commissioner's Instruction did not apply. Accordingly, the factual question of differential treatment is likely to be affected by evidence in the possession of the Respondent. 111The Applicant has issued a summons seeking production of documents which are apparently relevant to that factual enquiry and documents have been produced. As at the date of hearing the representatives of the Applicant had not inspected the documents. It is unclear whether there may be additional material going to a relevant factual issue, still in the Respondent's possession. 112Additionally, as was contemplated in Lunn above, the evidence in Contreras-Ortiz, upon the basis of which the ultimate finding of differential treatment was made, was given in cross-examination at hearing. The fact that the Applicant has adduced no direct evidence as to differential treatment for the purposes of this application does not mean that relevant evidence would not be adduced at a final hearing. 113There is a factual basis for the allegations comprising the complaint in so far as they affect the 2006 and 2008 classifications which have been admitted. There is also a factual basis for the allegation that the Applicant was classified C1 in the 2009 and 2010 classification. 114Additionally if differential treatment is established, there would appear to be material capable of amounting to evidence of causation to which the Tribunal has referred namely, that the Applicant's liability to deportation arising out of his UK citizenship may have been a true basis for the 2009 and 2010 classification decisions. 115While there is no evidence as to differential treatment, the parameters of relevant evidence cannot be established until findings as to the policy pursuant to which the Applicant was classified in 2009 and 2010 can be made, the characteristics of the comparator are identified and the relevant policy of the Respondent with regard to classification of the comparator is understood. Additionally, some factual issues are likely to be affected by evidence in the possession of the Respondent. 116On the basis of these matters and exercising the caution which must be applied to an Application such as this, the Tribunal cannot be satisfied that that the complaint in respect of the 2009 and 2010 classifications is lacking in substance upon the grounds that there was no factual basis for the allegations or the allegations lacked merit or that they are otherwise an untenable proposition of law or fact. For these reasons the Application on this ground should be dismissed. Whether the Commissioner's Instruction applies to the Applicant 117The Applicant falls within the definition of "Inmates of Interest to DIAC". The Respondent submits accordingly that the Applicant is a "Lawful Non-Citizen" within the meaning of the Commissioner's Instruction by reason that he is not an Australian citizen but holds a bridging visa. 118In its terms para. ii) of the Commissioner's Instruction provides that the Lawful Non-Citizens who are to be referred by the Classification and Case Management Review Co-ordinator for consideration of progress to C3 or Category 1 are those who are of interest to DIAC and "who are not managed by SORC or any of its sub-committees ...". [Emphasis added]. The evidence is that the Applicant was managed by SORC. 119As has been indicated, the Respondent filed and served written submissions in response to the Tribunal's 23 March 2012 letter on 13 April 2012. The Applicant, having sought further time, filed and served his supplementary submissions on 1 June 2012. 120The Respondent's supplementary submissions were accompanied by an unsigned affidavit of Ms Alison McDade, Specialist Psychologist, Violent Offenders Therapeutic Program, Parklea Correctional Centre. 121The Applicant objects to the affidavit of Ms McDade being received. Leave was not sought or obtained by the Respondent to adduce additional evidence. The Applicant submits that the submission of further evidence by correspondence in circumstances which would effectively deny the Applicant the opportunity to deal with the evidence or consider whether Ms McDade should be the subject of cross examination or otherwise put on evidence in reply would deny the Applicant procedural fairness. The Tribunal accepts that submission. The Tribunal does not accept the affidavit of Ms McDade into evidence or have regard to its content for the purposes of the application. 122The Respondent submits that the Commissioner's Instruction should be taken in its entirety and that as an administrative document it should not be construed with the strictness of a statute: see by analogy in the circumstances of reviewing an administrative decision Collector of Customs v. Pozzolanic (1993) 43 FCR 280 at 287 and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 at 272. 123The Respondent further submits that read as a whole the Commissioner's Instruction applies to all staff including SORC and the Commissioner and his delegates. It is addressed "for the information of all staff". It is also clear, the Respondent says, that the Commissioner's Instruction applies to all "inmates of interest to immigration". Under the heading "Instruction", the document states that its purpose is to ensure that "all inmates being considered for progression below C1/Category 3 are considered on their merits" (emphasis added). Under the heading "Inmates of Interest to DIAC" it is stated that the Commissioner's Instruction applies to all inmates who are not Australian citizens and who meet one of the enumerated criteria, including that the inmate is serving a term of 12 months or more or is a serious offender. 124The Commissioner's Instruction is expressly directed to SORC (its sub-committee PRLC) in the context of UnLawful Non-Citizens. The Respondent submits that although that part of the Commissioner's Instruction dealing with "Lawful Non-Citizens" appears not to contemplate the situation where that inmate is managed by SORC, given the express obligation upon SORC to follow the Commissioner's Instruction when dealing with "Unlawful Non-Citizens" SORC must also apply the policy when dealing with "Lawful Non-Citizens". It is submitted that this is the only way in which effect can be given to the overriding objective in the Commissioner's Instruction which is to "ensure that all inmates being considered for progression below C1/Category 3 are considered on their merits". 125The Applicant, on the other hand, submits that beyond the above general statement (as to the overriding objective) there is nothing in the relevant procedures that indicates that the Commissioner's Instruction applies to the Applicant at all. Firstly, the Applicant submits, the Classification Protocols in the Commissioner's Instruction commence with the acknowledgement that: "Prior to any consideration of progressing an inmate beyond C2 D/Category 2 D, the Classification and Case Management Review Coordinator at each centre ...[is to do certain things]." [Emphasis added]. 126The Applicant submits that insofar as Unlawful Non-Citizens are concerned the Commissioner's Instruction only requires referral to the Pre-Release Leave Committee "for consideration of progress beyond C2 D or Category 2 D or for the issue of a section 6(2)/26 order". The Applicant submits that the recommendation made by SORC on 17 November 2009 was that the Applicant be classified C2, not below that level and accordingly that the classification protocol cannot apply. 127Secondly, the Applicant submits that the Commissioner's Instruction does not in terms apply to a deportee who is of interest to DIAC and, as in the Applicant's case, is being managed by SORC. The procedures in respect of "Lawful Non-Citizens" are prescribed only for persons who are of interest to DIAC and who are not being managed by SORC or any of its sub-committees. The Applicant submits that reference to general statements in the preamble to the Instruction cannot supply procedures required to be followed. 128Thirdly, the Applicant submits that the nature of SORC militates against a conclusion that the Commissioner's Instruction was intended to apply to it. In Chapter 18 OPM the "Director's Review Committee" is described as follows: "This committee comprises of the Director, Classification and Case Management, Superintendent, Operations and Director, Sentence Administration Unit. The committee reviews and determines all applications for progression of classification below C1/Cat3 by non-serious and public interest offenders who are of interest to the DIMA." 129The Applicant submits that the fact that non-SORC individuals were under the Commissioner's Instruction being referred to the Director's Review Committee simply reflected the position as it obtained before the Commissioner's Instruction. 130In the case of Lawful Non-Citizens, Chapter 18 provided that: "In the case of inmates of interest to the DIMA who are not subject to management by the SORC as serious offenders, the Classification and Case Management Review Co-ordinator is to forward recommendation(s) to the Director, Inmate Classification and Case Management who will form a committee - the Director's Review Committee (DRC) - with the Superintendent, Operations and the Director, Sentence Administration Branch. This committee will make a final determination on the inmate's susceptibility for consideration for progression to C3/Cat 1 and consideration for external leave program participation." 131The Applicant submits that the Commissioner's Instruction does not appear to have altered the role of the Director's Review Committee in that in the context of Lawful Non-Citizens the Classification and Case Management Review Co-ordinator is concerned with inmates of interest to Immigration. 132The Applicant further submits that the functions of SORC insofar as classification decisions are concerned are determined by statute and in particular s.197(2) of the C(AS) Act as expanded by Regulations 16 and 20 of the Regulation. It is submitted that for this reason the Commissioner's Instruction could not apply to inmates being classified by SORC who are "serious offenders". See s.197(2)(a)(i). 133It is plain to the Tribunal on the basis of these competing submissions that real doubt exists as to whether the Commissioner's Instruction applies to Applicant's circumstances. The Commissioner's Instruction is not in its terms directed to the management of Lawful Non-Citizens who are managed by SORC. The Respondent has acknowledged this. For the purposes of this application and, taking the evidence comprised in the wording of the Commissioner's Instruction at its highest, it cannot be said to apply to the Applicant. 134The effect of the Applicant not being subject to the Commissioner's Instruction upon his re-classification post Contreras-Ortiz would be that there is no basis for the Respondent's submission that the Commissioner's Instruction operated to redress the discriminatory conduct which it has conceded occurred in respect of the Applicant in the 2006 and 2008 classifications. Additionally, there would be no basis for the submission that the 2009 and 2010 classifications were not discriminatory because they were made pursuant to the Commissioner's Instruction which provided that all classifications be considered on their merits. 135Neither party responded in terms to the Tribunal's invitation to make submissions on the second issue, namely: "b. If the Commissioner's Instruction does not apply to the Applicant pursuant to what policy was the Applicant's classification and management reviewed on 4 December 2009 and 15 April 2010." 136Accordingly, the Tribunal is not assisted to understand, in the absence of the Commissioner's Instruction applying to the Applicant, the basis of the Applicant's classification when reviewed in 2009 and 2010 and whether it responded to the decision in Contreras-Ortiz or was otherwise discriminatory. 137Having found that for the purposes of this application, the Commissioner's Instruction did not apply to the Applicant and, in the absence of other evidence, the question of what policy did apply to the Applicant upon his classification and management in 2009 and 2010 must go to a full hearing. 138The Respondent has further submitted that even if the Tribunal found that the Commissioner's Instruction did not apply to the SORC or the Commissioner's delegate, that did not establish that the Applicant was discriminated against on the ground of race. This is said to be the case because the Commissioner's Instruction replaced the earlier Instructions which were found by the Tribunal to be discriminatory in Contreras-Ortiz. Accordingly, it is submitted that by the time of the Applicant's classifications in 2009 and 2010, the earlier Instructions did not exist and could not have been applied by the SORC or the Commissioner's delegate and therefore cannot found an inference of discriminatory treatment. The Tribunal makes no finding that the earlier Instructions give rise to an inference of discriminatory treatment at least in respect of the 2009 and 2010 classifications. 139The Applicant also made extensive submissions as to how the Commissioner's Instruction would apply to an inmate in the Applicant's circumstances. Having for the purposes of this application, concluded on the basis of the evidence at its highest that the Commissioner's Instruction did not apply, it is not necessary to consider those further submissions. Whether relief is available to the Applicant 140The Respondent further submits that the complaint is lacking in substance within the meaning of s.92(1)(a)(i) of the ADA as the Tribunal has no power to grant the relief sought by the Applicant. 141The orders which the Tribunal is empowered to make upon finding a complaint substantiated in whole or in part are contained in s.108(2) of the ADA. Insofar as it can be ascertained from his correspondence to the ADB, the Applicant is not seeking an order for the payment of damages under s.108(2)(a) The Applicant is not seeking an order for the publication of an apology under s.108(2)(d), nor is the relief provided in sub-sections 108(2)(e), (f) or (g) apposite. 142In his letter to the President of the ADB dated 1 June 2010 the Applicant is apparently seeking of the ADB that it "use all the powers available to [it]...to persuade or force [the Respondent] to change inmates classifications back". 143Section 108(2)(b) provides that the Tribunal might: "make an order enjoining the Respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations," 144Section 108(2)(c) provides relevantly that the Tribunal might: "... order the Respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant." 145The Respondent concedes that the Tribunal could direct the Commissioner to reconsider the security classification of the Applicant. In Contreras-Ortiz (No. 2) the second order made was that: "2. Within 14 days of these orders, the First Respondent consider afresh (or direct that officers or employees of the Department consider afresh) the exercise of the powers of functions conferred by s.6 and/or s.26 of the Crimes (Administration of Sentences Act) 1999 (NSW) and/or clause 22 of the Crimes (Administration of Sentences) Regulation 2008 (NSW) in relation to the Applicant in accordance with the provisions of the ADA". 146The Respondent submits that such an order would lack utility in circumstances in which the "sticking point" in the Applicant's classification is that he has not yet completed CUBIT. In the Tribunal's view, that does not mean that the Applicant is not entitled to an order requiring reconsideration of his security classification if the Tribunal otherwise finds that there has been differential treatment on the grounds of his UK citizenship. Relief in the nature of the second order in Contreras-Ortiz may be available if the complaint is made out. 147The Respondent has also submitted that, to the extent that the Applicant is seeking the imposition of a lower security classification, the power conferred by s.108(2)(c) of the ADA cannot override the C(AS) Act or the Regulation so as to permit the Tribunal to exercise the powers of another statutory office. Additionally, the Respondent has submitted that the extent to which the Applicant may suggest that his classification should have been immediately reviewed and changed to C3 as soon as the Tribunal pronounced its orders in Contreras-Ortiz the argument is doomed to fail. In the first place it is said that such contention is not properly to be formed as a complaint of race discrimination contrary to the ADA. Secondly, it is said that the underlying argument lacks merit as the relevant order in Contreras-Ortiz enjoined the Commissioner from committing the enumerated discriminatory acts in the future. There may be merit in these submissions. In light of the Tribunal's finding that a remedy might otherwise be available, it is not necessary to consider them in detail for the purposes of this application. 148For these reasons, the Tribunal cannot find that the complaint lacks substance on the ground that no relief is available to the Applicant and the Application on this ground should also be dismissed. S. 92(1)(a)(ii) Claim 149The Respondent further seeks a dismissal of the proceedings on the basis of s. 92(1)(a)(ii) submitting that the conduct alleged if proven would not disclose the contravention of a provision of the Act. This submission plainly cannot stand in the face of the 2006 and 2008 classifications which have been admitted. Nor could the Tribunal find in respect of the 2009 and 2010 classifications on the basis of the material presently before it that the conduct alleged would not disclose the contravention of a provision of the Act. There is evidence of classification to C1 and evidence capable of going to the issue of causation. Whether there has been differential treatment is itself dependent upon identifying a comparator and the policy pursuant to which the Applicant was classified and evidence going to that matter, in the event that the Commissioner's Instructions does not apply, is within the possession of the Respondent. Taking into account the caution which must be taken in exercising the power to dismiss summarily, for these reasons the claim pursuant to s. 92(1)(a)(ii) should be dismissed. 150The Tribunal notes that the fact that the Respondent may have taken appropriate steps to remedy or address the complaint under s. 92 (1)(a)(vi) is not a matter upon which the proceedings relating to a complaint might be dismissed pursuant to s. 102. Conclusions in respect of the s.92(1)(a)(i) & (ii) claims. 151 The Respondent has conceded that the 2006 and 2008 classifications were discriminatory. The Respondent has submitted that the complaint lacks substance because the Commissioner's instruction operates to redress the conduct complained of and that no effective relief is available to the Applicant. The Respondent also says that the Commissioner's Instruction operated to provide a regime pursuant to which the 2009 and 2010 classifications could not be discriminatory. The Tribunal has found taking the evidence at its highest that the Commissioner's Instruction did not apply to the Applicant. Accordingly, the Respondent's submissions for the purposes of this application cannot be made out. 152For the reasons expressed, the Tribunal has found that the Respondent has not established that complaint is lacking in substance or that the conduct if proven would not disclose contravention of the ADA or regulations. In exercising the appropriate degree of caution in circumstances where the Applicant has filed no evidence and taking the material capable of being converted into evidence (namely the wording of the Commissioner's Instruction in so far as it applies to Lawful Non-Citizens) at its highest, the Tribunal is not satisfied that the circumstances clearly warrant dismissal of the complaint summarily. Adopting the approach of Ormiston, JA in Rabel at [109] with which the Appeal Panel agreed in Lunn at [20] there are no facts made known to the Tribunal which would undoubtedly deny the Applicant relief sufficient to demonstrate that the complaint is so hopeless that it should be summarily brought to an end. The Respondent's application must accordingly fail. The s.92(1)(b) Claim for Want of Prosecution 153The Respondent has further sought an order that the proceedings be summarily dismissed for want of prosecution. Section 92(1)(b) of the ADA provides that if at any stage of the President's investigation of a complaint: "(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint." 154The Appeal Panel has held (when construing s.111 of the ADA, the predecessor of s.102) that s.92(1)(b) together with s.111 empowered the Tribunal to dismiss an application for want of prosecution, evidenced by a repeated failure to comply with its orders. 155In Crewdson v. Niland & Ors (EOD) [2002] NSW ADTAP 5 the Appeal Panel found at [36]: "There is nothing on the face of [s.111(1)] which warrants limiting 'any other reason' to a genus of frivolous or vexatious or lacking in substance or misconceived. Given that these bases for dismissal include both objective and subjective features of the complaint itself, the phrase 'any other reason' must refer to something other than the content or character of the complaint. In other words it must be capable of encompassing some aspect of the proceedings themselves, such as a failure to diligently prosecute a complaint. The legislation thereby recognises that a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet if the complainant has demonstrated either an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed". This was in line with the policy considerations discussed by the Court of Appeal in Fairey v. Fairey (No 2) [2001] NSWCA 173. 156Accordingly, as s.92(1)(a)(i) of the ADA contemplates complaints which are "frivolous, vexatious, misconceived or lacking in substance" the reference in s.92(1)(b) to "any other reason" should encompass a failure to diligently prosecute a complaint. Being an application under s.102, the power to dismiss must be exercised with caution (see above). 157In the context of dismissal for want of prosecution it was held in Docherty v. The Smith Family [2011] NSW ADT 26 that: "to determine whether the power of dismissal should be exercised, it is necessary to have regard to the nature and history of the defaults of which complaint is made, and to consider their significance both for the Respondent, and for the past and future conduct of the proceedings." 158Britten DP in Sullivan v. State of New South Wales (NSW Police Force) [2009] NSW ADT 2 found at [17] that in considering the exercise of the power to dismiss a complaint for want of prosecution under s.107(1)(b) (being the previous provision providing for dismissal of proceedings relating to a complaint for want of prosecution, now repealed): "[t]he Tribunal must undertake a two-step process. First, the Tribunal must be satisfied that the proceedings are subject to a want of prosecution. Given the consequences that flow from the exercise of the power to dismiss a complaint there must be firm evidence that an applicant has failed to prosecute their complaint/s. A single default, for example, would generally be insufficient. Once satisfied that the proceedings are subject to a want of prosecution, the Tribunal may proceed to the second step and determine whether, having regard to all the relevant factors, the discretion to dismiss the complaint should be exercised." 159The Court in Hoser v. Hartcher [1999] NSWSC 527 at [20-34] set out the principles relevant to its discretion to strike out a matter for want of prosecution. In Fei v. Director-General, Department of Commerce (State of NSW) (No 2) [2009] NSW ADT 109 at [58] the Tribunal found that these principles are helpful in understanding, in general terms, the approach to be adopted in the exercise of the Tribunal's discretion under s.92(1)(b) (and s. 107(1)(b) (before its repeal) of the ADA. In Fei at [58] the Tribunal ultimately adopted the following principles: "1. There is a distinction in considering the termination of substantive rights on the ground of want of prosecution (on the one hand) and the termination of proceedings for failure to observe a specific order of a Tribunal or court or the demonstration by a party of an attitude to suit himself as to compliance with obligations to the court or to the other party (on the other hand). 2. Summary dismissal is an extreme measure especially where the past defaults are not continuing. 3. The exercise of the power to dismiss summarily prior to trial, requires a cautious approach especially if the case of the applicant has a reasonable prospect of success. 4. The extract from the judgment of Wilcox and Gummow JJ in Lenijamar is a statement which it is appropriate to apply in considering an application for dismissal of proceedings under s 107(1)(b) of the Act. The relevant principles from that statement require consideration as to whether: - The history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court or the other party. - Whatever the applicant's state of mind, where the non-compliance is continuing and occasioning unnecessary, delay expense or other prejudice to the respondent, the cumulative effect of an applicant's defaults may be such as to satisfy the Tribunal that the applicant is either subjectively unwilling to co-operate or for some other reason, is unable to do so. 5. These principles are also relevant in considering an application for dismissal of a complaint under s 102. In the application of this section, two additional aspects must be considered: - The extent of any irreparable prejudice to the respondent and whether the prejudice is continuing. - The need to maintain the integrity of the judicial process of the Tribunal." 160The Respondent submits that an inability or unwillingness to co-operate with the Tribunal has been demonstrated by the Applicant in this case. 161The Applicant's failure to comply with the timetables for the filing of Points of Claim and evidence is a serious one. The Tribunal has set out a history of the proceedings before it. The matter has not effectively progressed from commencement in June 2010 to the hearing of this application in July 2011. Notwithstanding at least four opportunities to do so the Applicant has filed no Points of Claim or any evidence. The failure to comply with directions is unexplained. Even upon being granted an adjournment on 6 May 2011 for the purposes of the Applicant being advised upon and providing instructions to his then legal advisor on the prosecution of the matter and the Respondent's Application for summary judgment the matter has been taken no further. Notwithstanding the Applicant being referred to the operation of the Tribunal's practice note 19 and the intimation that it was appropriate that the Applicant file and serve his evidence before the application for summary dismissal was made, he did not do so. With the exception of issuing the Summons to Produce and filing Submissions in respect of the Respondent's Application on the discrete matters raised in the Tribunal's letter dated 23 March 2012 the Applicant has taken no steps to prosecute the matter. 162In the Tribunal's view, there is firm evidence that the Applicant has failed to prosecute the complaint. The Tribunal is satisfied that the cumulative effect of the Applicant's defaults indicates, at least to the time of filing the supplementary submissions, an unwillingness or inability to co-operate with the Tribunal and the Respondent in having the matter ready for hearing within an acceptable time or for some other reason an inability to do so. In coming to this conclusion, the Tribunal has had regard to the facts that, although in custody, the Applicant has had the benefit of legal representation throughout the proceedings and that he and his solicitor are in receipt of the application and supporting materials. 163Britten DP held in Sullivan at [22] in respect of the previous provision corresponding to s.102: "Being satisfied that the precondition to the exercise of the power to dismiss a complaint/s under s.107(1)(b) has been established it is necessary to consider whether that power should be exercised. In making that decision the future conduct of the proceedings is relevant. Where a party provides the Tribunal with a credible and satisfactory assurance that their default in conduct would not be repeated, this will be a relevant factor in determining whether the discretionary power to dismiss should be exercised." 164Mr Clark, for the Applicant, submitted that the delays and failures to comply with the timetable were not the fault of the Applicant personally and that they should not be visited on the Applicant. However, there was no evidence as to the reason for defaults and, as has been indicated, the Applicant has been legally represented since the commencement of the proceedings. The Applicant has had notice of the application. 165Mr Clark submitted that in circumstances in which the Applicant was in receipt of grant of legal aid he would undertake to provide a merits advice within a short space of time. He said that this would have two possible results; firstly, if the merits advice was that there were no reasonable prospects or insufficient prospects then that may dispose of the matter. Alternatively, he said, if there were reasonable prospects the matter would be appropriately resourced to ensure that it was prosecuted fully from this point on. 166Mr Clark has informed the Tribunal that he was briefed only to prepare a merits advice for Legal Aid. There was no evidence or indication that the matter would otherwise be prosecuted by the Applicant. With respect to Mr Clark his submission does not give a credible and satisfactory assurance to the Tribunal on behalf of the Applicant that the default will not continue. There was no indication on the Applicant's part that he would proceed immediately with the filing of Points of Claim and evidence. Even if the Applicant was to receive a full grant of legal aid upon receipt of a merits advice, that merely goes to the issue of funding. It does not guarantee that the matter will be progressed. 167Other than the fact of the belated filing of limited submissions after hearing, the Tribunal has no material before it upon which it can be satisfied that the Applicant's failure to prosecute the matter would not continue if the matter was to proceed. 168Possible prejudice to the parties is also relevant to the exercise of the power to dismiss for want of prosecution: see Docherty and Sullivan above. Costs have been incurred by the Respondent in responding to the summons to produce documents, attending several directions hearings and preparing and prosecuting the summary dismissal application which has been adjourned once. The Applicant, being in custody, would apparently be unable to satisfy any costs order against him were it to be made. Accordingly, the Respondent is suffering the prejudice of incurring unrecoverable costs and delay while the matter drifts in the absence of compliance by the Applicant. 169On the other hand, dismissal of the complaint would be of some prejudice to the Applicant. The current application is made under s. 102 read with 92(1)(b). Ss. 102 and 92 (1)(a) and (b) provide that the Tribunal may "dismiss the whole or any part of the complaint". The Applicant's complaint falls within s. 87A. This is to be contrasted with a position as it obtained under s. 107 (now repealed) which also concerned the issue of want of prosecution. 170The Tribunal in Fei at [33] considered that "the operation of s. 102 and s. 107 [had] differing consequences". It went on to say "s. 102 provides for dismissal of a complaint with the result that the Complainant is prevented from pursuing the complaint further. S.107 provides for the dismissal of the proceedings relating to a complaint. In this event the complaint is not extinguished and fresh proceedings may be pursued by the Complainant although the Act contains no provision which deals with such an eventuality." 171Accordingly, the effect of dismissal under s. 102 would be that, subject only to the availability of any appeal, the Applicant is prevented from pursuing the matter further. This prejudice must, of course, be balanced against the Applicant's own defaults giving rise to the Respondent's application. 172The Applicant's prospects of success is also a relevant factor: see Hoser at [29]. The Tribunal has dismissed the Respondent's application for summary dismissal on the grounds that the complaint is lacking in substance. The Respondent has conceded discriminatory conduct in respect of the 2006 and 2008 classifications. Subject to the issue of whether the Commissioner's Instruction is operative, the Applicant may be entitled to relief. The Respondent's application in respect of the 2009 and 2010 classifications has also failed 173On the exercise of the discretion of the Tribunal has also taken into account the need to maintain its judicial process. The objects of the Tribunal are set out in s. 3 of the Administrative Decisions Tribunal Act 1977 ("ADT Act"). Sub-section 3(b) provides that the Tribunal is to: "ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair". 174Sub-section 3(c) provides that the Tribunal is: "to enable proceedings before the Tribunal to be determined in an informal and expeditious manner ...". 175Section 70 of the ADT Act requires the Tribunal to: "ensure that every party to proceedings is given a reasonable opportunity, (a) to present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings. 176The Tribunal's statutory duty must be balanced in the exercise of the discretion against the ultimate aim of a Court being the attainment of justice: see Queensland v. J L Holdings Pty Ltd (1997) 189 CLR 146) at [p.159]. 177The Applicant has been given a more than reasonable opportunity to present his case and to make submissions in relation to the issues in the proceedings. The Tribunal has found that he has been unwilling or unable to do so. Nothing has been put to the Tribunal which could reasonably satisfy it that the Applicant if given a further opportunity to do so would comply with the Tribunal's directions for the filing of Points of Claim and evidence to ready the matter for final hearing. Nor is the Applicant in the position to pay the Respondent's costs thrown away as a condition should he be afforded a further opportunity to file his Points of Claim and evidence. Nor should the Respondent be put to continuing expense for which it cannot be compensated. 178On the other hand, very belatedly, submissions have been served on behalf of the Applicant upon the basis of which the Tribunal has found that there is a real question as to whether the Commissioner's Instruction applied to the Applicant. If it did not, the Respondent cannot say that in the Applicant's circumstances the Commissioner's Instruction operated to redress the discrimination which it has conceded in respect of the 2006 and 2008 classifications or that it operated to provide a non-discriminatory regime in which the 2009 and 2010 classifications were made. Nor can it say that the Applicant is not entitled to other relief. In those circumstances, the complaint cannot be said to be lacking in substance. Dismissal of the complaint for want of prosecution may have the effect that the complaint is finally determined and the Applicant cannot pursue the matter further. 179Judicial Member Wright SC observed in Barake at [74] "Allegations of racial discrimination ..... are serious matters and should not be lightly dismissed. It is important that employers and providers of services ensure that their directors, staff and those for whom they are responsible comply with the ADA in carrying out their duties". The Judicial Member went on to say that the Tribunal "does not wish to prevent a matter which may have some substance being heard if this is consistent with equity, good conscience and the substantive merits of the case." at [74]. The Tribunal considers that these observations are appropriate for the circumstances of this application. 180Section 85 of the ADT Act provides:- "A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision." 181Weighing all of these factors, the Tribunal finds that it is in the interests of justice not to dismiss the proceedings provided the Applicant proceed to file and serve Points of Claim within twenty eight days to avoid further prejudice and delay. Should he not do so, having regard to its findings as to the Applicant's unwillingness or inability to co-operate with the Tribunal referred to above, the Tribunal finds that the proceedings should be dismissed for want of prosecution. The Respondent having not succeeded in its primary application for dismissal of the proceedings will be in no worse position from a cost perspective should such orders be made. Further default by the Applicant would see an end to the matter without any additional appearances being necessary. The period of twenty eight days would appear to be reasonable given the history of the matter, the fact that the Applicant has been approved for a limited grant of legal aid and the fact that the Respondent has already produced documents in answer to the Summons. Orders The Tribunal orders: 1. The complaint be amended pursuant to s. 103 of the Anti-Discrimination Act, 1977 to include as grounds of complaint the classification decisions made by the Respondent on 4 December 2009 and 15 April 2010. 2. The Respondent's application under s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(a)(i) and (ii) is dismissed. 3. The Applicant is to file and serve Points of Claim and any evidence within 28 days from the date of this Order. 4. In default of compliance by the Applicant with Order 3 the complaint be dismissed in whole pursuant to s.102 of the Anti-Discrimination Act, 1977 read with s.92(1)(b). 5. On compliance with Order 3 the Registrar is requested to list the proceedings for a directions hearing on a date to be notified to the parties. ********** 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. Decision last updated: 06 July 2012