Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Burns v McKee [2015] NSWCATAD 106 Hearing dates: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Conley J, Senior Member Decision: Leave declined to issue a summons to the Anti-Discrimination Board Catchwords: Application to issue summons Legislation Cited: Anti-Discrimination Act 1977(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: White v Carlton Tow Bars Pty Ltd t/as TJM Southside [2014] NSWCATAP 36. R v Saleam [1999] NSWCCA 86 Alister v R [1984] HCA 85; (1984) 154 CLR 404 Category: Principal judgment Parties: Garry Burns (Applicant) Geoffrey McKee (Respondent) Representation: Solicitors: G Burns (Applicant in Person Robert Balzola (Respondent) File Number(s): 1410520 Background 1. Garry Burns, (the applicant) made a number of complaints against Geoffrey McKee (the respondent) under the Anti-Discrimination Act 1977 (the ADA) to the Anti-Discrimination Board (the ADB). One of his complaints (C2014/05030), being the complaint the subject of these proceedings, was referred by the President, to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (the Tribunal). 2. In respect of another of the applicant's complaints (C2014/0649), the Respondent was notified of the complaint, however during the investigation by the ADB the compliant was declined by the President. The applicant elected to withdraw a third complaint (C2014/0817). 3. The complaint the subject of these proceedings came before the Tribunal for directions at a series of case conferences. Directions had been made for the filing and exchange of documents and the matter was listed for a case conference on 25 March 2015 to set a date for the hearing. The Summons 1. At the case conference held on 25 March 2015, the respondent's solicitor sought leave to file a Summons on the ADB. The Tribunal's powers and provisions in relation to the issue of a Summons was set out in White v Carlton Tow Bars Pty Ltd t/as TJM Southside NSWCATAP 36. Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) gives the Tribunal the power to issue a summons. Rule 34 of the Civil and Administrative Tribunal Rules 2014 (NSW) governs the issue of a summons and the Tribunal's Procedural Direction 2 also applies to the issue of a summons. 2. The facts of this matter were relatively straight forward. The respondent's solicitor identified that the purpose of the Summons was to obtain documents in relation to the complaint (C2014/0817) which had been withdrawn at the ADB and documents relating to this complaint to compare the subject matter. In respect of the withdrawn complaint, it was not disputed that the respondent was only aware that the complaint had been made and the reference number. He was unaware of the subject matter of the complaint because it had been withdrawn at an early stage. 3. It was claimed by the respondent's solicitor that the subject matter of the complaint withdrawn "may" have been identical to the subject matter of this complaint currently before the Tribunal. It was further claimed that if this were the case, that this would be relevant to the Tribunal's "jurisdiction" to hear the complaint currently before the Tribunal. It was claimed that if the subject matter were found to be the same, there may be some form of estoppel, or in the alternate it was claimed that "res judicata" may apply. 4. The applicant was vehemently opposed to the issue of the summons. He claimed that the material was not relevant. He agreed that the complaint had been withdrawn at an early stage. He claimed that the reason for seeking a Summons was simply another "delaying tactic" by the respondent to further prolong the finalisation of these proceedings. 5. A person who has made a complaint to the ADB may withdraw a complaint at any time pursuant to s 92B of the ADA. Pursuant to s 92 of the ADA, the President may decline a complaint at any time during the investigation. An applicant must then seek leave of the Tribunal in those circumstances for a complaint to proceed, pursuant to s 96 of the ADA. The Tribunal's jurisdiction to hear a complaint under the ADA is confined to matters referred by the President of the ADB. The scope of a complaint may however be subsequently amended by leave of the Tribunal. This complaint was referred to the Tribunal by the President. 6. As noted above, the applicant opposed the issue of the Summons and claimed the documents sought were not relevant to the proceedings. It is not sufficient that documents sought are relevant to proceedings, it must be established that there is a legitimate forensic purpose and that it is "on the cards" the documents will materially assist the case, see R v Saleam [1999] NSWCCA 86 and Alister v R HCA 85 ;(1984) 154 CLR 404 at 414. 7. The respondent's solicitor identified that the reason for seeking the summons was to obtain material in relation to a complaint before the ADB which had been withdrawn and material in relation to this complaint before the Tribunal. The complaint had been withdrawn at the ADB prior to the respondent being formally notified of the complaint in writing. The respondent was therefore unaware of the subject matter of the complaint. There was no suggestion in these circumstances that there were any terms of settlement/consent agreement/consent orders entered into between the parties in relation to that complaint. There has not been any determination of that complaint by this Tribunal, nor it's predecessor the Administrative Decisions Tribunal. In the circumstances here, there can be no defence of an estoppel, nor res judicata, arising in relation to the subject matter of the complaint which was withdrawn. This was the identified purpose for seeking the documents. 8. The Summons was opposed by the applicant. The respondent has failed to identify that the material sought was relevant to these proceedings, or that any such documents would on the cards materially assist the respondent's case. The Tribunal declined to issue the summons and the matter was subsequently listed for hearing. The respondent has subsequently sought written reasons for the declinature in relation to the issue of the Summons. 9. The respondent is able to put any submissions to the Tribunal in respect of the Tribunal's jurisdiction to hear this complaint, or the merits of this complaint at the hearing. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 22 May 2015