Supreme Court New South Wales Medium Neutral Citation: Wecker v The Delegate (the decision maker) to the President (Mr S Kerkyashrian) of the NSW Anti-Discrimination Board [2014] NSWSC 386 Hearing dates: 28 March 2014 Decision date: 04 April 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Summons is dismissed. Catchwords: ADMINISTRATIVE LAW - orders sought under s 69 of the Supreme Court Act 1970 that complaints made under the Anti-Discrimination Act 1977 be listed for leave to appeal to the Administrative Decisions Tribunal or be referred to a judicial member of the Tribunal - complaints of unlawful discrimination on the basis of disability declined under s 89B of the Anti-Discrimination Act - statutory construction - cause of action - limitation of actions - whether Limitation Act 1969 applies to complaints made under the Anti-Discrimination Act 1977 - whether s 52 of the Limitation Act 1969 limits the discretion to decline complaints of disability discrimination under s 89B of the Anti-Discrimination Act - whether plaintiff had a legitimate expectation that his complaints would be referred to the Tribunal - whether there is a duty requiring complaints declined under s 89B of the Anti-Discrimination Act 1977 to be referred to the Tribunal Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Limitation Act 1969 (NSW) Mental Health Act 2007 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Achurch v The Queen [2014] HCA 10 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Country Energy v Williams [2005] NSWCA 318; 141 LGERA 426 Director General, New South Wales Department of Community Services v Children's Court of New South Wales & Ors; Re Peter & Ors [2002] NSWSC 679 Minister of State for Immigration & Ethnic Affairs v Ah Hin [1995] HCA 20; 183 CLR 273 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Ritson v Commissioner of Police [2013] NSWSC 1396 Shrayer v Anti-Discrimination Board of NSW [2008] NSWSC 1036 Wecker v Delegate to the President of the NSW Anti-Discrimination Board [2013] FCA 1167 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, New South Wales, 2011, at [7.7] - [7.15] Category: Principal judgment Parties: Paul J Wecker (Plaintiff) The Delegate (the decision maker) to the President (Mr S Kerkyashrian) of the NSW Anti-Discrimination Board (Defendant) Representation: Solicitors: Mr PJ Wecker, unrepresented (Plaintiff) Ms K Sanders, Crown Solicitor's Office (Defendant) File Number(s): 2013/387403 Publication restriction: None Judgment 1By his summons Mr Wecker sought orders under s 69 of the Supreme Court Act 1970 (NSW) requiring complaints which he made in July and August 2013 under the Anti-Discrimination Act 1977 (NSW) against the University of New South Wales to be listed for leave to appeal to the Administrative Decisions Tribunal. 2In August 2013, Mr Wecker was advised by a delegate of the President of the NSW Anti-Discrimination Board that his complaints had been dismissed under s 89B of the Anti-Discrimination Act and that the decision could not be reviewed by the Administrative Decisions Tribunal. On 29 August 2013, he made a written request that the Anti-Discrimination Board refer his complaint to the Tribunal. On 2 September, he was advised that the Anti-Discrimination Board had no power to make such a referral. 3Mr Wecker then commenced proceedings in the Federal Court. They were dismissed on 8 November (see Wecker v Delegate to the President of the NSW Anti-Discrimination Board [2013] FCA 1167). In December 2013, he commenced these proceedings. 4In his written submissions Mr Wecker sought to establish that the decision to refuse to refer his complaint involved an error of law or jurisdictional error, warranting the relief which he sought under the Supreme Court Act. Mr Wecker explained that what he sought was an order compelling the President of the Anti-Discrimination Board "to comply with the routine listing of declined complaints in the Administrative Decisions Tribunal". His case was that justice demanded that his complaints be referred to a judicial member of the Administrative Decisions Tribunal and that the refusal to refer his complaints involved a breach of the hearing rule. 5In his oral submissions Mr Wecker explained that what he sought was not a review of the refusal of his complaints, which is prohibited by s 89B(4) of the Anti-Discrimination Act, but that they be referred to a judicial member of the Administrative Decisions Tribunal to be dealt with under its normal protocols. 6Section 49L of the Anti-Discrimination Act makes it unlawful for an educational authority to discriminate against a person on the ground of disability, by subjecting the person to various detriments. Mr Wecker's complaints concerned the University's refusal in 2010 and 2011 to allow him to complete a course he was undertaking, which would qualify him to teach English at high school, after complaints were made about him to the University during a teaching placement at a high school, which formed part of the course. The University required him to provide evidence of his suitability to teach, before he was permitted to continue this aspect of the course. 7Mr Wecker's case was that thereby, the University had unlawfully discriminated against him on the basis of disability, preventing him from earning a living as a high school teacher, making him some $900 per week worse off. 8In issue between the parties was the proper construction of the legislative schemes; whether Mr Wecker had a legitimate expectation that his complaint would be referred to the Tribunal; whether provisions of the Limitation Act 1969 (NSW) applied to his complaint; and whether there was any power or duty to refer his complaint to the Tribunal, which could be the subject of the Court's order under the Supreme Court Act. Did the Limitation Act 1969 apply to Mr Wecker's complaint? 9Mr Wecker's case was that the dismissal of his complaint involved an error of law, because s 52 of the Limitation Act had the effect that the limitation period for bringing his complaint was not running, given his disability. 10The word "disability" is not defined in the Limitation Act. Mr Wecker relied on s 49A of the Anti-Discrimination Act, which provides: "49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)." 11Section 49B of the Anti-Discrimination Act provides that a perpetrator discriminates against an aggrieved person on the ground of disability if the perpetrator 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 who does not have that disability. 12Mr Wecker's case was that his disability and the discrimination complained about were evidenced by documents on which he had relied to support his complaints to the Anti-Discrimination Board. They included advice which he had received from the University in 2010 that he would not be permitted to continue with his professional experience, until his mental state had been evaluated and his fitness for practice assessed in the light of his unacceptable behaviour and lack of awareness of the effect of that behaviour on others. 13Mr Wecker also relied on s 16(1) of the Mental Health Act 2007 (NSW) which provides: "16 Certain words or conduct may not indicate mental illness or disorder (cf 1990 Act, s 11) (1) A person is not a mentally ill person or a mentally disordered person merely because of any one or more of the following: (a) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political opinion or belief, (b) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular religious opinion or belief, (c) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular philosophy, (d) the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular sexual preference or sexual orientation, (e) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular political activity, (f) the person engages in or refuses or fails to engage in, or has engaged in or refused or failed to engage in, a particular religious activity, (g) the person engages in or has engaged in a particular sexual activity or sexual promiscuity, (h) the person engages in or has engaged in immoral conduct, (i) the person engages in or has engaged in illegal conduct, (j) the person has developmental disability of mind, (k) the person takes or has taken alcohol or any other drug, (l) the person engages in or has engaged in anti-social behaviour, (m) the person has a particular economic or social status or is a member of a particular cultural or racial group. (2) Nothing in this Part prevents, in relation to a person who takes or has taken alcohol or any other drug, the serious or permanent physiological, biochemical or psychological effects of drug taking from being regarded as an indication that a person is suffering from mental illness or other condition of disability of mind." 14Mr Wecker submitted that in the result s 52 of the Limitation Act applied to his complaints. It provides: "52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) This section does not apply to a cause of action to recover a penalty or forfeiture or sum by way of penalty or forfeiture, except where the person having the cause of action is an aggrieved party." 15This raised the question of whether Mr Wecker's complaints to the Anti-Discrimination Board about alleged unlawful discrimination were a "cause of action" to which the Limitation Act applied. That term is not defined, but "action" is defined in s 11 to include "any proceeding in a court". 16As Brennan J observed in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 610: "There is an imprecision in the meaning of the term cause of action, which is sometimes used to mean the facts which support a right to judgment (see per Williams J. in Carter v. Egg and Egg Pulp Marketing Board (Vict.) [1942] HCA 30; (1942) 66 CLR 557, at pp 600, 601 ); sometimes to mean a right which has been infringed (see Serrao v. Noel (1885) LR 15 QBD 549 ), and sometimes to mean the substance of an action as distinct from its form (see Krishna Behari Roy v. Brojeswari Chowdranee (1875) LR 2 Ind App 283 )." 17The Anti-Discrimination Act gives a person who has been unlawfully discriminated against the right to make a complaint to the Anti-Discrimination Board. That Act imposes no limitation period for the bringing of such complaints, but s 89B gives the President of the Anti-Discrimination Board a discretion to accept or dismiss complaints in specified circumstances. That involves an administrative decision. If accepted, the President is obliged to investigate the complaint (s 90). 18Section 92 also empowers the President to decline complaints during their investigation, upon satisfaction of things specified there. Complaints may also be terminated in various circumstances, including under s 92A upon the President being satisfied "that the complaint, or part of the complaint, has been settled or resolved by agreement between the parties". 19A complaint which is not resolved could be referred to the Tribunal in specified circumstances (see s 95). In some cases complaints so referred could only proceed with the Tribunal's leave (s 96). If a complaint was made out, the Tribunal had the power to order damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the unlawful discrimination established. 20The Limitation Act applies to the particular causes of action specified in Part 2 'Periods of limitation and related matters' of that Act. A complaint brought under the Anti-Discrimination Act can only conceivably fall within the provisions there made, if it is "a cause of action to recover money recoverable by virtue of an enactment" (see s 14(1)(d)). It is not, for example, an action seeking the recovery of a penalty or forfeiture (s 18), or for personal injury) (s 18A) or in contract or tort (s 14). 21The President of the Anti-Discrimination Board has no power to make any money order, but the Tribunal could make orders under s 108 of the Anti-Discrimination Act for "damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct", if it found a complaint substantiated in whole or in part. 22Such an order does not appear to be an order for the recovery of money, which would bring a complaint made under the Anti-Discrimination Act within the ambit of s 14 of the Limitation Act. If it were, the result would be that rather than there being no limitation period imposed for the bringing of complaints under the Anti-Discrimination Act, the six year limitation period imposed by s 14 of the Limitation Act would apply to such complaints. Section 52 of that Act would then apply, so that the limitation period would be suspended in the case of a complainant suffering from a disability, for the duration of the disability. 23In Mr Wecker's case that would have no practical impact, because despite the disability he claims to suffer from, he brought his complaint to the Anti-Discrimination Board within the six year limitation period which would apply, if s 14 of the Limitation Act applied to his complaint. Was there power to decline Mr Wecker's complaints? 24Mr Wecker's complaints concerned conduct which had occurred more than 12 months before his complaints were made. They were declined under s 89B. Under the Anti-Discrimination Act there is no right of appeal from such a decision. 25Mr Wecker contended, however, that s 52 of the Limitation Act also had an impact on the discretion granted by s 89B of the Anti-Discrimination Act, to decline his complaint. That was in issue. 26The issue raises the question of the Legislature's intention when enacting s 89B. That must be discerned from the text of the legislation (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]). As discussed in Achurch v The Queen [2014] HCA 10 at [31], the purpose of the provision can also be used as an aid to its construction (see s 33 of the Interpretation Act 1987 (NSW)). 27The section was enacted in 2004 to provide: "89B Acceptance or declining of complaints by the President (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if: (a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or (c) the conduct complained of could amount to a contravention of a provision of this Act (not including section 20D, 38T, 49ZTA or 49ZXC) for which a specific penalty is imposed, or (d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or (e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint. (3) The President is to give notice of a decision to accept or decline a complaint to: (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made.(4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal." 28Section 89B is not concerned with the time within which a complaint under the Anti- Discrimination Act must be lodged with the President of the Anti- Discrimination Board under s89A. It presumes that the complaint is within time. In such a case it grants the President a discretion to accept or dismiss the complaint, in the circumstances there specified. 29Even if the Limitation Act did apply to complaints made under the Anti- Discrimination Act, it does not follow that the two enactments are inconsistent, or that s 52 of the Limitation Act has any impact on the discretion granted by s 89B the Anti-Discrimination Act. They are concerned with different things. 30The effect of s 52 is that in the case of a person suffering a disability, the general limitation period of six years specified by s 14 to run from the date on which the cause of action first accrues, that being the date on which the conduct in question occurred, is suspended. 31If it applies to complaints made under the Anti-Discrimination Act, s 52 of the Limitation Act does not prevent or inhibit a person the subject of unlawfully discriminatory conduct from making a complaint under the Anti-Discrimination Act. Nor does it prevent or inhibit such a complaint being dealt with, once made, in accordance with that statutory scheme. No part of that scheme is suspended by operation of s 52, which in its terms is concerned only with suspension of the period specified by the Limitation Act within which an action must be commenced. 32Even if it be considered that there is some tension between s 52 of the Limitation Act and s 89B of the Anti-Discrimination Act, rules of statutory construction require that both be given effect, if that is possible (see the discussion in S D C Pearce and R S Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, New South Wales, 2011, at [7.7] - [7.15]). Clearly it is. 33The Limitation Act makes general provisions as to time limits within which particular actions must be commenced. Section 52 is concerned with the suspension of the running of such time limits, when a person suffers from a disability. 34The later enacted s 89B of the Anti-Discrimination Act makes specific provisions as to circumstances in which a complaint of unlawful discrimination which has been brought within time, may be dismissed by the President's administrative decision, relevantly, if it concerns conduct which occurred more than 12 months previously. 35Its purpose in a scheme which imposes no time limits for the making of complaints is obvious. That it is a discretion which applies equally to any complaint of unlawful discrimination, including discrimination on the ground of a disability, may also not be overlooked. The discretion is intended to permit a preliminary assessment to be made of all complaints made under the Anti-Discrimination Act, with the result that some complaints may be declined, without the President's investigation. 36Plainly enough, in this statutory scheme, that it is a complaint of disability discrimination which is being advanced, will be a relevant matter to take into account in determining how the discretion given by s 89B to accept or dismiss a complaint should be exercised in a particular case. That the exercise of that discretion is confined by s 52 of the Limitation Act in the case of a disability discrimination complaint, does not follow however, either as a matter of statutory construction or commonsense, from the text of either of the two statutes. 37Section 89B was enacted in 2004 in order to give the President a new function of accepting or declining certain complaints, without investigation. The construction of s 52 for which Mr Wecker contended does not fit with the text of that section. It is not concerned with the exercise of such a discretion. Nor does it accord with the limited purpose of the section, concerned as it is with the suspension of the applicable limitation period. Nor does it fit with the text or purpose of s 89B. It follows that the discretion granted by s 89B may not be read down by an implication or limitation which is not to be found in the express words of s 52 of the Limitation Act. 38Nor does the legislative history support such a construction. The s 89B discretion introduced in 2004 is concerned with a different matter to whether a complaint is brought within time, the matter to which s52 is addressed. If a complaint is not brought within time the s 89B discretion would not arise to be exercised at all. 39Section 52 of the Limitation Act is not concerned at all with the exercise of such a discretion. It is only concerned with the suspension of the running of the limitation periods fixed by that Act. In the result, it cannot be concluded that s 52 assists Mr Wecker, as he submits, by precluding the exercise of the s 89B discretion, in the case of a complaint alleging unlawful discrimination on the ground of disability, while the disability persists. Did the legislative scheme permit Mr Wecker's complaints to be referred to the Tribunal, or the Tribunal to deal with such a referral? 40Mr Wecker submitted that it was as the result of the wrongful dismissal of his claims under s 89B(2)(b) that they had not been referred to the Tribunal under s 95, which provides: "95 Referral of complaints to Tribunal (1) A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C. (2) The Minister may refer any matter to the Tribunal as a complaint. (3) (Repealed)" 41The difficulty with that submission is that it overlooks the balance of the statutory scheme. 42The President had the powers and functions imposed by the Anti-Discrimination Act, while the Tribunal had the jurisdiction and functions granted it by that Act and the Administrative Decisions Tribunal Act 1997 (NSW). In the Tribunal's case they included jurisdiction to review decisions made by an administrator such as the President, if the relevant statute provided that applications for review of such decisions could be made to it (see s 38). The Anti-Discrimination Act did not provide for such a review of a decision under s 89B, declining a complaint. To the contrary, s 89B(4) precluded it. 43The Administrative Decisions Tribunal Act also provided for external appeals in s 118A, again, in relation to an appeal against a decision or class of decisions provided for in the relevant statute. The Anti-Discrimination Act did not provide for an appeal from a decision under s 89B, dismissing a complaint. 44Section 93A of the Anti-Discrimination Act provides: "93A Referral of complaints to Tribunal at requirement of complainant (1) If the President has given a complainant a notice under section 87B (4), 91 (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal. (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal. 45Section 87B deals with complaints made on behalf of others, and, s 91 deals with vilification complaints and with severing of complaints. None of these provisions were relevant to Mr Wecker's complaints. Sections 93B and 93C provide: "93B Referral of unresolved complaints to Tribunal after 18 months (1) If a complaint has not been declined, terminated or otherwise resolved within 18 months after the date on which it was made, a party to the complaint may request the President by notice in writing to refer the complaint to the Tribunal. (2) On receipt of the notice, the President must give notice in writing to all the other parties to the complaint of the request. (3) If, within 28 days after the President gives notice to all the other parties, no party has objected to referral of the complaint, the President is to refer the complaint to the Tribunal. (4) If the complainant objects to the referral of the complaint, the President must not refer the complaint to the Tribunal, but may, if satisfied that there is no reasonable prospect of a conciliated agreement, terminate the complaint. (5) If the respondent objects to the referral of the complaint, the President is to refer the complaint to the Tribunal, unless satisfied that there are reasonable prospects of a conciliated agreement. 93C Other referral of complaints to Tribunal If the President: (a) is of the opinion that a complaint cannot be resolved by conciliation, or (b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or (c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal, or (d) is satisfied that all parties wish the complaint to be referred to the Tribunal and that it is appropriate in the circumstances to do so, the President is to refer the complaint to the Tribunal." 46All such referrals concern complaints which have been accepted under s 89B, have been investigated under s 90, have not been resolved and have no real prospects of being resolved. That is not Mr Wecker's situation. 47The President may also refer a complaint to the Tribunal under s 90B(5), in circumstances where a complainant or a person against whom a complaint is made has failed to provide information or documents, the President notified were required to be provided. 48None of these referral provisions apply to complaints which have been declined under s 89B. 49In the circumstances the President had the power to decline Mr Wecker's complaints. That power having been exercised, the legislative scheme gave Mr Wecker neither a right of appeal nor a right to have his complaints referred to the Tribunal, as he sought. Did Mr Wecker have a legitimate expectation that his complaint would be referred to the Tribunal? 50Mr Wecker relied on procedures established by the Tribunal for the conduct of complaints referred to it, after they have been declined, as founding his legitimate expectation that the Tribunal would deal with the dismissal of his complaint. He particularly relied on the Tribunal's Equal Opportunity Division: Guideline - Part 6 Declined complaints; and the five step process established for applying for leave to start a case before the Tribunal, after the President of the Anti-Discrimination Board has declined a complaint. 51That Mr Wecker can have had any legitimate expectation that these procedures would be applied to his complaints, which had been declined under s 89B and not referred to the Tribunal as he sought, was in issue. 52The Tribunal advised Mr Wecker that it would not deal with his complaint; that his file had been closed and that the decision to decline his complaint was not reviewable. That advice accorded with the statutory regime which governed the Tribunal's powers and procedures. That advice did not reflect any misunderstanding as to the difference between a leave to appeal application and a referral of the decision to decline his complaints under s 89B, as Mr Wecker submitted. 53As discussed in Minister of State for Immigration & Ethnic Affairs v Ah Hin [1995] HCA 20; 183 CLR 273 by Mason CJ And Deane J at 291, legitimate expectations are not equated to rules or principles of law. Absent statutory indications to the contrary, that the Tribunal would act in conformity with the guidelines and procedures which it published, was a legitimate expectation on the part of someone like Mr Wecker, although such guidelines and procedures may, of course, be abandoned or altered (see Country Energy v Williams [2005] NSWCA 318; 141 LGERA 426 at [98]). 54In this case, however, those guidelines and procedures could only apply to matters properly brought before the Tribunal, which it was given a statutory power to deal with. As Mr Wecker was advised, the Tribunal had no such power to deal with his complaints under this statutory scheme, which gave him neither the right to appeal the decision to decline his complaint under s 89B, nor to have that decision referred to the Tribunal for review. Nor was the Tribunal given power to deal with that decision. That explains why his complaints as to the hearing rule having been breached by the refusal of his applications for referral to the Tribunal also have no foundation. 55The Anti-Discrimination Board had no power to refer his complaints, as it advised him. There was nothing before the Tribunal which it could hear, and no order which it could make, which would empower it to deal with the President's decision to decline his complaints, in respect of which Mr Wecker was entitled to be heard, no matter what its guidelines and procedures provided. In this case there was a statutory indication that the Tribunal could not deal with his complaints. Mr Wecker's expectation that it would, in the circumstances, was not legitimate. Does the Court have the power to make the order sought? 56It was not in issue that the Supreme Court Act empowers the Court to make an order in the nature of mandamus requiring the defendant to perform his duty. What that encompassed was in issue. 57Mr Wecker relied on O'Keefe J's observations in Director General, New South Wales Department of Community Services v Children's Court of New South Wales & Ors; Re Peter & Ors [2002] NSWSC 679; 56 NSWLR 555 at [80] to submit that the order he sought should be made because he was personally interested in obtaining access to the Tribunal, so that he could resolve an administrative decision which had cost him a weekly loss of about $900 a week for over three years. There his Honour said at [80] - [81]: "80 The writ of mandamus was abolished in New South Wales in 1970. However, s.69 of the Supreme Court Act 1970 confers on the Court jurisdiction to grant relief in the nature of mandamus by ordering any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. Whilst this section enables the Court to issue orders in the nature of mandamus, it does not empower the Court to substitute its own decision for that of an inferior court in which the power to make the relevant decision is exclusively vested. It does however empower this court in the exercise of its supervisory jurisdiction to order a judicial officer who has purported to exercise a power, function or discretion to do so in accordance with law, in cases in which the purported exercise has not been in accordance with law. 81 The principles applicable to orders in the nature of mandamus have been definitively stated in The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228. Relevantly, Rich, Dixon and McTiernan JJ said: "A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty, or in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to exercise his function according to law de novo at any rate if a sufficient demand or request to do so has been made upon him." (at 242)" 58The difficulty is that notwithstanding Mr Wecker's undoubted interest in the pursuit of his complaints, he has not established that there is any duty which requires that his complaints be referred to the Tribunal, which can be enforced as he seeks. 59Mr Wecker also relied on Garling J's observations in Ritson v Commissioner of Police [2013] NSWSC 1396 to submit that a duty which the Tribunal could require be performed included a moral duty or a duty to help others less fortunate. That submission cannot be accepted. Garling J observed at [65] - [72]: "65 Secondly, the meaning of the word "duty" is often elusive. It very much depends upon the context in which it is being used. It may include either a specific legal obligation or a more general legal obligation. It includes a moral obligation, such as used in an expression like "a duty to help others less fortunate". 66 The concept of a duty encompasses that which might be required to be done by reason of a position held, such as the duty of a toll collector to collect the toll. In that sense it is being used to echo the function being expected of a person occupying a position or office. In 1805, when Admiral Horatio Nelson signalled that "England expects that every man will do his duty", he was not using the word duty as anything more than the description of the function to be performed by all seamen of the British Fleet in the Battle of Trafalgar which was about to commence. Lieutenant Paul Nicholas of the Royal Marines, recorded his reaction, "... this emphatic injunction was received ...", and recorded the response as "... each bosom glowed with ardour at this appeal to individual valour". He too received it as a statement of the job he was to do. No question of a statutory basis arose. 67 In such cases, there may not necessarily be a legal obligation so to do, because it may be a contractual obligation created by a contractual document such as a "Duty Statement" which accompanies a designated position. 68 Thirdly, in considering legal authorities, it is necessary to keep in mind what kind of duty is being discussed. ... 71 Statutory provisions may or may not create duties, depending on the words used, and the nature or type of duties being discussed. O'Keefe J said in Wilson v State of New South Wales [2001] NSWSC 869 at [41]; (2001) 53 NSWLR 407 at 416-417, that ss 6 and 7 of the Police Act, set goals after which each member of the police force is required to strive, but do not impose tortious duties of care owed to individuals in the community to fulfil all, or any, of the matters there set out: see also State of NSW v Tyszyk [2008] NSWCA 107 at [75] per Campbell JA (Mason P and Giles JA agreeing). 72 Similar care needs to be exercised when considering what Basten JA said in Mohamed at [36]. Although his Honour described the imposition on a police officer of a duty to exercise their powers in a non-discriminatory way, he did not thereby state a general duty to carry out criminal investigations of a kind which would be enforceable, as is clear from his remarks in [49]." 60Here what is sought is an order requiring complaints made under the Anti- Discrimination Act, which were declined as the result of the exercise of the discretionary powers granted by s 89B, to be referred to the Tribunal. 61In order for Mr Wecker's case to succeed, he must establish that the legislative scheme under which he made his complaint imposes a duty of referral which can be enforced. That he has failed to do. This statutory scheme does not impose any duty requiring his complaints to be referred to the Tribunal. To the contrary, it provides expressly that the Tribunal has no power to review a decision made under s 89B to dismiss his complaint. 62As discussed in Shrayer v Anti-Discrimination Board of NSW [2008] NSWSC 1036 at [25], the Legislature plainly intended to make a decision declining a complaint under s 89B final and beyond challenge 63The order which Mr Wecker seeks would thus be fruitless, if made. Even if required by this Court to refer his complaint, the Tribunal had no power to review the decision to dismiss it, notwithstanding any view it might hold as to any moral obligation to help him pursue his complaints, given the alleged disability discrimination which they concern. The establishment of the Civil and Administrative Tribunal of NSW 64It was not suggested by the parties that the establishment of the new Civil and Administrative Tribunal of New South Wales conceivably leads to any other result, even though, if Mr Wecker's case could be upheld, the matter would have to be dealt with by the Administrative and Equal Opportunity Division of that new body, which has now been given the function of dealing with the Anti-Discrimination Act (see schedule 3 to the Civil and Administrative Tribunal Act 2013 and clause 8 of schedule 3). 65In the result, Mr Wecker's summons must be dismissed. The usual order as to costs is that they follow the event. Unless the parties approach to be heard on the question of costs within 14 days, that will be the Court's order. Orders 66 For the reasons given, I order that Mr Wecker's summons is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2014