Administrative Decisions Tribunal New South Wales Medium Neutral Citation: State of New South Wales (NSW Police Force) v Whitfield (No. 2) [2012] NSWADTAP 48 Hearing dates: 10 September 2012 Decision date: 20 November 2012 Before: Judge K P O'Connor, President G Furness SC, Judicial Member J McClelland, Non-judicial Member Decision: 1. The appeal is extended to the merits. 2. The complaint is dismissed. 3. There being no application as to costs, no order is made as to costs. Catchwords: APPEAL - Whether to extend to merits or remit to first instance - Limited additional evidence - Effect of error of law ruling - Utility - Appeal extended to the merits, and dismissed Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 Category: Consequential orders Parties: State of New South Wales (NSW Police Force) (Appellant) Keith Whitfield (Respondent) Representation: Counsel M Seck (Appellant) N Poynder (Respondent) Henry Davis York (Appellant) Legal Aid NSW (Respondent) File Number(s): 119056 Decision under appeal Jurisdiction: 9108 Citation: Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 Date of Decision: 2011-11-15 00:00:00 Before: Equal Opportunity Division File Number(s): 101068 REASON FOR DECISION 1The appeal in this matter was decided on 25 July 2012: State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27. The appeal was allowed and the orders of the Tribunal were set aside. Oral submissions were made on 10 September 2012 as to what further orders for the disposal of the proceedings should be made. 2After the reasons which follow had been prepared in draft, we were advised on 22 October 2012 by his solicitor that the respondent, Mr Whitfield, had died. We drew his solicitor's attention to s 93 of the Anti-Discrimination Act 1977 (AD Act) (death of complainant or respondent does not terminate complaint), and advised that we were minded to publish this decision unless advised otherwise by the solicitor. There has been no reply to that effect. Accordingly these reasons are published for the benefit of the deceased's personal representative and the appellant. 3As to how the Appeal Panel should now deal with the case, Mr Seck, counsel for the appellant, submitted that there should be no remittal to a Tribunal and that the complaint should be dismissed. He submitted that the Appeal Panel found that the conduct complained of was not unlawful because there was no refusal to provide the respondent with services and nor were those services provided on terms. Further, the appellant submitted that the respondent had the burden of proof in demonstrating causation and the Appeal Panel found that there was an insufficient basis for drawing an inference that the direction made by the Constable was on the ground of age. Hence, causation had not been proved. 4Counsel for the respondent submitted that the matter should be remitted to the Tribunal as previously constituted on the grounds that the errors identified by the Appeal Panel could be 'dealt with' by the Tribunal. It was submitted that the Tribunal previously constituted could, based on the evidence already called, and in conformity with the findings of the Appeal Panel, characterise the conduct complained of so as to find that a service was refused or offered on terms. 5It was submitted that, if necessary, the Constable could be recalled before the originally constituted Tribunal and asked questions about his usual practice in attending to neighbourhood disputes. That evidence may then permit an inference to be properly drawn as to the ground on which he made the direction to the respondent. Consideration 6The Appeal Panel has found error in the findings of the Tribunal that the services provided by the appellant were refused to the respondent or provided to him on terms. 7It follows that the applicant at first instance (the respondent on appeal), had not made out his complaint of discrimination on the grounds of age in the area of goods and services. 8The issues which the respondent has submitted may be remitted to the Tribunal go to the questions of law which have been decided by the Appeal Panel. 9Were the matter remitted and the Constable recalled and he gave evidence which lawfully permitted a finding that his actions were performed on the grounds of the age of the respondent, that would not cure the finding made by the Appeal Panel that there was no refusal to provide services and nor were they provided on unlawful terms. 10There has been no appeal as to the procedures followed by the Tribunal such as might give rise to consideration of remittal. Order 1. The appeal is extended to the merits. 2. The complaint is dismissed. 3. There being no application as to costs, no order is made as to costs. 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: 21 November 2012