Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jamal v Commissioner of Police (NSW) [2017] NSWCA 7 Hearing dates: 1 February 2017 Decision date: 01 February 2017 Before: Basten JA at [1] and [25]; Payne JA at [22] Decision: (1) Leave to appeal refused. (2) The applicant to pay the respondent's costs of the application for leave. Catchwords: APPEAL – application for leave to appeal – refusal of application for judicial review of decisions of NCAT – refusal of adjournment by NCAT – refusal of leave to proceed with complaint of discrimination referred at request of applicant – whether arguable case of procedural unfairness or other error of law JUDICIAL REVIEW – whether Tribunal properly constituted by qualified member – whether application engaged a "substantive Division function" – whether bias – whether reasons adequate – whether challenges to fact-finding available PROCEDURE – failure to supply written statement of reasons within time specified – whether decision rendered invalid – failure to name correct party as respondent in Tribunal – failure to record decisions clearly in Tribunal records Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 9 Anti-Discrimination Act 1977 (NSW), ss 92, 93A, 96 Civil and Administrative Tribunal Act 2013 (NSW), ss 61, 62; Sch 3, Pt 4, cl 4 Cases Cited: Jamal v Commissioner of Police (NSW) [2016] NSWCA 345 Category: Principal judgment Parties: Jon Jamal (Applicant) NSW Police Commissioner (First Respondent) Christopher Stiles (Second Respondent) J W Box (Third Respondent) Representation: Counsel: Applicant self-represented Ms E Raper (Respondents) Solicitors: Applicant self-represented Bartier Perry (Respondents) File Number(s): 2016/188326 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2016] NSWSC 658 Date of Decision: 26 May 2016 Before: Harrison AsJ File Number(s): 2014/369907 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: On 23 August 2013, the applicant, Jon Jamal, lodged a complaint with the Anti-Discrimination Board alleging discrimination on the grounds of race and sex by two identified police officers. On 14 April 2015, the New South Wales Civil and Administrative Tribunal (known as NCAT) dismissed the complaint. By summons in the Common Law Division, the applicant sought judicial review of that decision, and of an interlocutory decision of the Tribunal on the same day refusing him an adjournment. 2. The summons came before Harrison AsJ on 20 April 2016. On 26 May 2016, orders were made dismissing the proceedings. [1] The applicant now seeks leave to appeal to this Court from that judgment. The application for leave has been considered separately from the appeal. A grant of leave was opposed by the respondent Commissioner. Background 1. Some years ago, the applicant and his wife separated, with his wife having custody of their children. In May 2011, on the application of a police officer, the Local Court granted an apprehended domestic violence order (ADVO) preventing the applicant from approaching or contacting his ex-wife or their children. On 14 May 2011, four days after the ADVO was made, the applicant's son broke his leg, on one account whilst playing on playground equipment. The applicant believes that the injury was caused by an assault and sought to have the incident investigated by police. A few days later, the applicant was arrested and was himself charged with an assault on his ex-wife. 2. On 8 March 2012, the applicant lodged his first complaint of discrimination under the Anti-Discrimination Act 1977 (NSW), based on the failure of the police to investigate his complaints of assault on his son. Following a hearing in May 2013, on 29 July 2013 the Tribunal dismissed the complaints. The applicant lodged an appeal, but on 23 August 2013, lodged a second complaint with the Board. The second complaint related to a further event in June 2013 when the applicant made allegations to police (relating to statements made by his ex-wife), which the police declined to investigate. On this occasion, the Board declined the complaint and, at the applicant's request, referred it to the Tribunal. In order to prosecute proceedings before the Tribunal, the applicant required leave from the Tribunal, pursuant to s 96 of the Anti-Discrimination Act. His application for leave was heard by Principal Member Patten on 14 April 2014, in the Administrative and Equal Opportunity Division. It was the refusal of leave to proceed which led to proceedings by way of judicial review in the Supreme Court. 3. At one stage of the hearing before the primary judge, the applicant appeared to accept that it had been a mistake to proceed by way of judicial review, rather than by an internal appeal to the Appeal Panel of NCAT. [2] Pursuant to s 92 of the Anti-Discrimination Act, the President of the Anti-Discrimination Board may, by notice in writing to the complainant, decline a complaint. That occurred in the present case. The Act, s 93A, gives the complainant a right to serve a notice on the President requiring that the complaint be referred to the Tribunal. However, the complainant must then obtain leave from the Tribunal in order for the complaint to be "the subject of proceedings before the Tribunal": s 96(1). It was that requirement which formed the basis of the application before the Tribunal in the present case. A decision as to leave would appear to be either a decision within the administrative review jurisdiction of the Tribunal (see Administrative Decisions Review Act 1997 (NSW), s 9) or, alternatively, within the "general jurisdiction" of the Tribunal. However, as counsel for the respondent noted, the right of internal appeal was expressly removed. [3] 4. Despite raising the concern as to the appropriate forum, the applicant continued his submissions before the primary judge and then sought leave to appeal from the judgment dismissing his proceedings in the Court. The applicant repeated his concern that (and submitted in this Court) the primary judge ought to have dealt with his concern and not proceeded to deal with the judicial review proceedings, if as a matter of law, she deemed that inappropriate. That was not a course which the primary judge was required to take. The applicant was in control of the proceedings before the court and did not seek at any stage to withdraw them. The existence of an internal appeal in the Tribunal might have provided a separate and powerful ground for refusing judicial review of the decision of a single member of the Tribunal refusing leave to proceed with a complaint. However, the ground was not invoked, probably because there was in fact no right of internal appeal. Grounds of appeal 1. The first challenge to the decision given by the Hon David Patten, described in the Tribunal decision as Principal Member, was that he was not qualified to constitute the Tribunal, not being an Australian lawyer in accordance with the requirement of the Tribunal Act. [4] The ground was raised on appeal, although it appeared to have been abandoned before the primary judge. [5] 2. Whether or not the person who heard the application for leave to proceed needed to be an Australian lawyer, depended upon whether the application involved a "substantive Division function" under Sch 3, cl 1(1). A Division function which involves the making of an ancillary or interlocutory decision is not a substantive Division function. It was at least arguable that the application therefore did not constitute a substantive Division function, and therefore did not need to be considered by a person who was qualified as an Australian lawyer under cl 4. 3. In any event, why the applicant thought that the Principal Member was not an Australian lawyer is unclear. It does not appear that he challenged the constitution of the Tribunal at the time of the hearing, but had he done so, he might have been reassured on this matter. As was explained in the course of the hearing, the Principal Member was known to the Court as a former judge of the District Court, and as a former acting judge of the Supreme Court. There is no basis for doubting that he was qualified to sit under Sch 3 of the Tribunal Act. Whether he was correctly named as a Principal Member is of no legal consequence. The primary judge correctly dismissed this challenge to the jurisdiction of the Tribunal. 4. Albeit in somewhat obscure terms, a summary of argument filed by the applicant on 28 November 2016 complained that the primary judge demonstrated bias against him. The focus of the submission was a finding made by the judge with respect to the reasons given by the Tribunal for its decision of 14 April 2014. The material before this Court indicates that the Tribunal gave its decision on the day of the hearing, and gave oral reasons for declining to grant leave to the applicant to pursue his complaint. Section 62(1) of the Tribunal Act requires that a party to proceedings is to be given "notice" of any decision. It also requires that where a party is given notice of a decision, he or she may request the Tribunal to provide a written statement of reasons for its decision, if that has not already been provided. [6] The written statement is to be provided within 28 days after the request is made. 5. The Tribunal Registrar sent the applicant by post a notice of the decision on the day it was made. That notice contained a statement indicating that he could request written reasons for the decision. The applicant duly made that request. On 8 July 2014, almost three months after making the request, he was provided with a transcript of the oral reasons delivered by the Principal Member. 6. The delay in complying with the request for written reasons was unexplained in the material before this Court, although in a letter to the Tribunal, the applicant referred to a telephone conversation in which a Tribunal officer had said, apparently incorrectly, that a copy had already been delivered. If, as seems plausible, the delay was caused by a delay in the preparation of the transcript of the decision, the applicant should have been informed of that fact within the 28 day period. If that was in fact the cause of the delay, it is, of course, unsatisfactory that the resources available to the transcription service do not permit the preparation of reasons for decision within the period fixed by Parliament. Nevertheless, as the primary judge noted, there is no reason to suppose that the decision, which was effective immediately, by virtue of s 61 of the Tribunal Act, became invalid as a result of a failure to comply with a time limit for providing reasons, even though the time limit was expressed in mandatory terms. It does not follow from that mandatory expression that the consequence of a failure to comply is to retrospectively invalidate the decision. No such statutory intention should be inferred. Rather, as is common in other jurisdictions, the failure to provide a copy of the reasons given orally in a timely manner may form the basis for an application to be allowed to appeal out of time. 7. The applicant also submitted that there was only one decision made at the hearing, not two. That submission was based on different reference numbers being used by the transcription service on the two sets of reasons for the separate decisions which were subsequently provided to the applicant. He also relied on the record prepared by the registry of the orders, which ran two somewhat obscurely worded orders under one number. However, the suggestion that the second decision was added later is contradicted by the transcript of the oral hearing which contained both decisions, and the reasons for each, and was before the primary judge. 8. There were other references to bias in the written submissions, including bias on the part of the Tribunal. The substance of the complaint was, in each case, identified by reference to a ruling with which the applicant did not agree. Nothing in his discursive summary of argument, or the other documents placed before this Court by the applicant, gave any basis for the proposition that the primary judge appeared to be, or was in fact, biased. The same is true with respect to the allegation of bias on the part of the Tribunal, which appears to be raised in the grounds of appeal, but was not expanded upon in argument. That ground was raised before the primary judge and dismissed, properly in the circumstances. [7] 9. The third ground agitated before the primary judge alleged that the wrong party was a respondent to the proceedings in the Tribunal. The applicant says that the main party was "NSW Police Force", whereas it should have been the Commissioner of Police. That would appear to be correct as a matter of principle: the Police Force is not a juristic person, and the appropriate respondent to the complaint before the Board was the Commissioner. However, there were other officers named in the complaint, and originally in the proceedings. The generic term "NSW Police Force" may have been adopted by the transcription writer (as it was by the applicant on occasion) as a shorthand title. Nothing turned on the attempt by the transcription service to identify the respondent. The Registrar of the Tribunal could have been more precise in recording the order, but again there was no doubt as to the nature or substance of the complaint before the Tribunal, nor the effect of the order made. Before the primary judge, the parties appear to have been in agreement as to the proper respondent, and the judge corrected the record and properly dismissed this ground of review. 10. Fourthly, the applicant complained that he had been denied procedural fairness in the refusal of his application for an adjournment by the Tribunal. That application was at various points in the hearing before the Tribunal, based on (i) absence of notice of the hearing of his application, (ii) his difficulties with English and his need for an interpreter, and (iii) his intention to seek legal advice. He also raised an issue before the Tribunal, before the primary judge (and, last year, before this Court [8] ) as to his medical condition. The evidence proffered to this Court was the bland statement by a general practitioner that he would be unable to attend court for one month without any indication as to the basis for that opinion. A similar certificate appears to have been tendered before the primary judge. Although in the course of oral submissions, the applicant indicated that he suffered from a medical condition, it was clear that he was able to present his argument before this Court without impediment from that condition. 11. In any event, the circumstances in which a refusal to grant an adjournment will form the basis of an application for judicial review will be limited. In the present case, the Tribunal dealt with the issues put before it in an orderly and persuasive manner. In relation to notice, the Tribunal was satisfied that, even if he did not receive the letter correctly addressed to him by the Tribunal on 21 March 2014, he had been served with an outline of submissions by the respondent some days before the hearing. The Tribunal accepted that English was not the applicant's first language, and that he was not particularly proficient in it. However, there were grounds for thinking that having managed in English on previous occasions, he was sufficiently competent to explain the basis on which he sought leave to pursue his complaint. As it was his own complaint which he had to explain, the Tribunal was not persuaded that there was merit in the request for an adjournment to obtain legal advice. The Tribunal also took account of the fact that the material which formed the basis of the complaint provided no sufficient credible evidence to warrant a grant of leave to proceed. These matters were addressed by the primary judge who concluded that no error of law in the form of procedural unfairness warranted review of the Tribunal's decision. 12. Fifthly, the applicant submitted that the Tribunal had failed to invite him to indicate whether he intended to call witnesses or give evidence or tender documents. This was said to involve "an improper exercise of his discretion". A similar complaint was made in relation to the proceeding before the primary judge. The argument was pursued as if the hearing before the primary judge involved a process equivalent to summary criminal proceedings. Disregarding the procedural confusion, it is not possible to discern from the submissions or the transcripts any relevant unfairness in the proceedings before the Tribunal, or before the primary judge. 13. Again, somewhat obliquely, and only in written submissions, one may discern a complaint as to the adequacy of the reasons given by the primary judge. If such a complaint were intended, it was without substance. The primary judge addressed the issues raised by the applicant and explained with care her reasons for rejecting his submissions. 14. In this Court, the applicant was at pains to explain the factual basis of his complaint about alleged police misconduct, which included allegations of unlawful activities on the part of at least one officer, and of the failure of senior members of the police force to address his complaints. He then submitted that a comparison of his treatment with that accorded by a police officer to his wife demonstrated discrimination, at least on the basis of sex. That is a matter of factual assessment. The Tribunal member said he had read the file and could see no basis to grant leave to proceed. No error of law was established in that conclusion before Harrison AsJ. The applicant's submissions in this Court revealed a deep seated belief that the adverse treatment he had received was based on unlawful discrimination. But that was his evaluation, based on the facts which he spent a little time explaining to the Court. It is not a basis for intervention by this Court. Conclusions 1. This Court has no mandate to intervene to review a judgment rejecting a challenge to a tribunal decision, absent an arguable error of law on the part of the tribunal, being an error which was not accepted by the primary judge. In the circumstances, there is no arguable case of error on the part of the primary judge. It follows that there was no error on the part of the Tribunal which warranted intervention by way of judicial review. Leave to appeal should be refused. 2. PAYNE JA: I agree with the reasons of Basten JA and the order he proposes. 3. BASTEN JA: Can you resist an order for costs, Mr Jamal? 4. APPLICANT: I am disabled pensioner. I have no money. 5. BASTEN JA: The ordinary order as to costs will follow, namely that the applicant pay the costs of the respondent of the application for leave to appeal. 6. The orders of the Court are: 1. Leave to appeal refused. 2. The applicant to pay the respondent's costs of the application for leave. ********** Endnotes 1. Jamal v NSW Police Commissioner [2016] NSWSC 658. 2. Tcpt, NSWSC, 30/10/15, pp 4-6 and 18. 3. Civil and Administrative Tribunal Act 2013 (NSW) ("Tribunal Act"), Sch 3, Pt 6, cl 15(a). 4. Tribunal Act, Sch 3, Pt 4, cl 4. 5. Tcpt, p 18. 6. Tribunal Act, s 62(2). 7. Jamal at [42]-[46]. 8. Jamal v Commissioner of Police (NSW) [2016] NSWCA 345. 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: 09 February 2017