Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CQP v The Trustee for McPickelway Unit Trust [2017] NSWCATAD 314 Hearing dates: 20 June 2017 Date of orders: 20 June 2017 Decision date: 20 June 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The time for requesting written reasons is extended to 19 October 2017. Catchwords: PRACTICE AND PROCEDURE – dismissal of race discrimination complaint for "any other reason" – where applicant had signed Terms of Settlement and withdrawn complaint – where applicant changed her mind and decided not to withdraw complaint and to apply for complaint to be amended – where respondent relied on the releases and discharges made by the applicant as a bar to continuing with the complaint - whether complaint should be dismissed for "any other reason" – whether complaint, once dismissed, could be amended Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Anti-Discrimination Act 1977 (NSW) Cases Cited: Bank of Credit and Commerce International SA v Ali [2001] 1 AC 251 Chi v Coles Supermarket Australia Pty Limited [2006] NSWADTAP 3 Grant v John Grant & Sons Pty Ltd [1954] HCA 23 Karem v ANZ Banking Group Ltd [2001] NSWSC 709 Matthews v Hargraves (No 4) [2013] FMCA 4 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Sebastian v Rail Infrastructure Corporation and Ors [2005] NSWADT 281 Category: Procedural and other rulings Parties: CQP (Applicant) The Trustee for McPickelway Unit Trust (Respondent) Representation: Applicant (self-represented) Solicitors: Gilchrist Connell (Respondent) File Number(s): 2016/00378553 Publication restriction: The disclosure of the name of the applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Overview 1. CQP made a complaint of race discrimination against the Castlereagh Hotel under the Anti-Discrimination Act 1977 (NSW). She says she was refused service by employees of the Hotel on 6 April 2014 and 16 May 2014 on the ground that she is Aboriginal. The President of the Anti-Discrimination Board referred the complaint to the Tribunal on 30 November 2016. At a preliminary hearing on 20 June 2017 I dismissed the complaint because each party had signed Terms of Settlement and the Hotel relied on the releases and discharges made by CQP as a bar to continuing with the complaint. As the complaint had been dismissed, I refused CQP application to amend the complaint to add another incident of alleged refusal of service which took place on 22 April 2017. 2. The order I made was as follows: The complaint of race discrimination is dismissed under section 102 of the Anti-Discrimination Act 1977 for "any other reason". The reason is that the proceedings have settled and the applicant has signed terms of settlement including a release. It follows that the applicant's application for the complaint to be amended is refused. 1. On 19 October 2017 CQP requested written reasons for this decision. A request for written reasons must be made within 28 days of being given notice of the Tribunal's decision: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 62(2). The Tribunal may extend the time for requesting written reasons: NCAT Act, s 41. I extend the time for requesting written reasons to 19 October 2017. I do so because CQP says that she did not know that she was entitled to a written statement of reasons and was not represented by a lawyer at the time. A firm of solicitors have since agreed to act for her free of charge. There is no prejudice to the Hotel if the Tribunal provides CQP with a written statement of reasons for its decision. 2. On 6 April 2017 CQP participated in a mediation. The matter settled and both parties signed Terms of Settlement. On the same day CQP wrote to the Tribunal advising that the matter has been resolved successfully and that she wished to withdraw her complaint. The proceedings were listed for dismissal on 9 May 2017. Meanwhile, on 24 April 2017 CQP wrote to the Tribunal saying that she no longer wished to withdraw her complaint. The proceedings were listed for a preliminary hearing on 9 May 2017. The Hotel provided evidence and written submissions in support of their application for the complaint to be dismissed. CQP provided written submissions in reply. Power to dismiss the complaint 1. The Tribunal has power to dismiss a complaint "at any stage in proceedings" on certain grounds including that the complaint is frivolous, vexatious, misconceived or lacking in substance or that "for any other reason no further action should be taken in respect of the complaint": Anti-Discrimination Act, s 102 and s 92(1)(b) 2. One of the grounds for the Hotel's dismissal application was that the Terms of Settlement bar CQP from going ahead with the complaint. The Tribunal has power to dismiss a complaint on that basis: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Sebastian v Rail Infrastructure Corporation and Ors [2005] NSWADT 281 at [37] - [50] to (upheld on appeal at [2006] NSWADTAP 44); Chi v Coles Supermarket Australia Pty Limited [2006] NSWADTAP 3; Matthews v Hargraves (No 4) [2013] FMCA 4 at 179, 206 -207. The terms of settlement 1. The parties signed the Terms of Settlement on 6 April 2017. CQP said that she was not given the opportunity to seek legal advice before signing the document and would have liked that opportunity. I note that, at clause 6 of the Terms of Settlement, each party warranted to the other that "the party has had an opportunity to obtain independent legal and other advice before entering into this agreement" and that "the party has not entered into this agreement under duress." 2. Clause 3 of the Terms of Settlement included the following release in favour of the Hotel: CQP releases the Hotel, and all its officers, agents and employees from all claims, complaints, demands, suits, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under statute (Claims) which she has which but for this agreement could, would or might have had against the Hotel (including its officers, agents and employees jointly or separately) in respect of or arising out of or in connection with or relating or incidental to, either directly or indirectly, the Released Matters set out in the Introduction to this agreement. 1. 'Released Matters' is defined in the introduction to the Terms of Settlement as "all matters, rights and entitlements relating to and/or arising directly or indirectly from or in any way relating to or connected with the Complaint, the allegations, the ban, and the proceedings, now or in the future." The complaint was defined as the complaint CQP filed with the President of the Anti-Discrimination Board on 9 June 2015 and about which she provided further information on 12 November 2015. CQP covenanted with the Hotel not to bring or make any Claims against the Hotel in respect of or in connection with the Released Matters. 2. In clause 4.2 of the Terms of Settlement CQP acknowledged that the Hotel may rely upon or enforce the releases and discharges as a bar to any claim which may be brought by CQP. 3. There are no special rules of interpretation in relation to release clauses. As with any contract such a clause should be interpreted to give effect to what the contracting parties intended. Relevant principles were summarised by Santow J in Karem v ANZ Banking Group Ltd [2001] NSWSC 709 at [406]. According to Lord Bingham in Bank of Credit and Commerce International SA v Ali [2001] 1 AC 251 at 259, [8]: To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties' relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties' intentions the court does not of course inquire into the parties' subjective states of mind but makes an objective judgment based on the materials already identified. 1. That proposition accords with the frequently quoted High Court authority Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1952) 91 CLR 112 at 129-130. 2. In construing the release in clause 4.1.2 of the Terms of Settlement I must have regard to the Terms of Settlement as a whole and give effect to the objective intention of the parties. I have not had regard to any evidence about the parties' subjective intention at the time the Terms of Settlement was signed. Rather I have relied on evidence of their objective intention as demonstrated by the provisions in the Terms of Settlement and the surrounding circumstances. 3. I agree with the Hotel's submissions that there is no ambiguity as to the matters intended to be covered by the releases and covenants that CQP gave in the Terms of Settlement. It is clear that she is precluded from continuing with or reinstating the complaint she made against the Hotel. The complaint should be dismissed on that basis. 4. CQP sought to amend her complaint to add a complaint of discrimination in relation to an alleged incident which took place on 22 April 2017: Anti-Discrimination Act, s 103. As the complaint has been dismissed, it cannot be amended. CQP will need to lodge a new complaint with the President of the Anti-Discrimination Board if she wishes to formally complain that this incident constitutes a breach of the Anti-Discrimination Act. Orders The time for requesting written reasons is extended to 19 October 2017. ********** 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 Amendments 08 November 2017 - applicants name anonymised. 08 November 2017 - opened in error, no correction made 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: 08 November 2017