Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Webber v Racing NSW [2018] NSWCATAD 44 Hearing dates: 9 February 2018 Date of orders: 16 February 2018 Decision date: 16 February 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: R C Titterton, Principal Member Decision: (1) The respondent's application to stay or adjourn the proceedings is refused. Catchwords: PRACTICE AND PROCEDURE – Application for stay pending determination of proceedings in the Supreme Court – principles to be applied Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Industrial Relations Act 1996 Supreme Court Act 1970 Thoroughbred Racing Act 1996 Cases Cited: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 CHI v Children's Guardian [2016] NSWCATAD 151 Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 L & W Developments Pty Limited v Della [2003] NSWCA 140 Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170; [1992] HCA 66 Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197 Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 Sogelease v Griffin [2002] NSWSC 1099 St George Wholesale Distributors Pty Ltd v Chief Commissioner for State Revenue [2014] NSWCATAD 134 Sterling Pharmaceuticals Pty Limited v The Boots Company Australia Pty Ltd (1992) 34 FCR 287 The Environmental Group Ltd v Croudace unreported, 7 August 1998 The Owners-Strata Plan No. 51487 v Broadsand Pty Ltd [2001] NSWSC 813 Voth v Manildra Flour Mills (1990) 171 CLR 538 Wang v Dental Council of NSW [2016] NSWCATOD 90 Category: Procedural and other rulings Parties: Pam Webber (Applicant) Racing NSW (Respondent) Representation: Counsel: V Heath (Applicant) J McLeod (Respondent) File Number(s): 2017/00322630 REASONS FOR DECISION Introduction 1. By application dated 25 January 2018, the respondent seeks that the proceedings be stayed pending determination of Supreme Court proceedings 2016/362162, or until further order of the Tribunal. In the alternative, the respondent seeks an order that the proceedings be adjourned until a date convenient to the Tribunal in June 2018. 2. The application is opposed by Ms Webber, who seeks further orders for the management of the matter. 3. For the following reasons, the respondent's application is refused. These proceedings 1. The applicant has been a professional trainer of thoroughbred horses since 1979. She was licensed to do so continuously from 1994 to 1 September 2016. 2. The applicant sustained injuries in the course of her work as a trainer in the period April 2002 to 2 October 2012, in particular injuries to her cervical and lumbar spine, which have required surgeries and caused periods of temporary total disability and permanent partial physical disability for heavy work. 3. On 15 February 2016, the applicant was kicked by a horse causing her acute aggravation of her previous lumbar spine injury. 4. The matters which concern the applicant are identified in her Points of Claim filed 18 January 2018. In summary, she makes the following allegations. 1. On 27 June 2016, the respondent gave notice that it intended to review her licence because of a concern that her injuries may prevent her from performing some physical duties. 2. On 15 July 2016, at an interview with the Licensing Committee of the respondent, the applicant was told that a purpose of the interview was to address the respondent's concerns about her physical capability to perform the role of trainer due to her injuries. She was asked questions about her medical condition and physical abilities and disabilities. She was also told that a purpose of the interview was to address the respondent's concerns about her financial position and to establish financially and physically whether she was able to renew her trainer's licence. After 15 July 2016, the respondent required the applicant to provide it with further medical and financial information. 3. On 1 September 2016, the respondent: 1. refused the applicant's application for licence renewal; 2. failed or refused to extend the applicant's then current licence with the effect that her licence was terminated; 3. alternatively, withdrew the applicant's then current licence with the effect that the applicant's licence was terminated, and has since continued to fail or refuse to grant the applicant a licence. 1. A letter from the respondent to the applicant dated 1 September 2016 relevantly states: I advise that a decision in the matter has been reached. After considering all of the material before it, the Licensing Committee determined that in light of your financial position and performance (particularly with respect to work health and safety issues) you are unsuitable to continue as a licensed trainer. As a consequence, the Licensing Committee recommended that you not be granted a trainer's licence for 2016/17. By this letter . . . I have determined that you will not be granted a trainer's licence for 2016/17. In circumstances where your 2015/16 trainer's licence was previously extended until 2 September 2016, it will now expire on that day. 1. The applicant submits that the conduct of the respondent constituted unlawful discrimination in that: 1. The respondent directly discriminated against the applicant contrary to ss 49B(1)(a) and 49J(1) of the Anti-Discrimination Act 1977 (AD Act), in that on the grounds of her actual disability and/or the respondent's perception of her disability, it treated her less favourably than it treats or would treat a person who does not have that disability or perceived disability; 2. Further or alternatively, the respondent indirectly discriminated against the applicant contrary to ss 49B(1)(b) and 49J(1) of the AD Act, in that it required the applicant to comply with standards of conduct in respect of ensuring her own physical safety with which a substantially higher proportion of persons who do have the applicant's disability are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the applicant does not or is not able to comply; 3. Further or alternatively, the respondent indirectly discriminated against the applicant contrary to ss 49B(1)(b) and 49J(1) of the AD Act, in that it required the applicant to comply with financial standards of a level of income or profitability with which a substantially higher proportion of persons who do not have the applicant's disability are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the applicant does not or is not able to comply. 1. The applicant alleges that the respondent's unlawful discrimination in breach of the AD Act caused loss and damage to her and her company Fasteedious Pty Ltd. 2. On 24 January 2017, the applicant filed a complaint with the Anti-Discrimination Board (ADB). 3. On 3 October 2017, the ADB referred the complaint to the Tribunal for a public hearing pursuant to s 93C of the AD Act. The Supreme Court proceedings 1. On 2 December 2016, the applicant filed a Summons (Judicial Review) in the Supreme Court of NSW. The applicant seeks relief in respect of the decision of the respondent of 1 September 2016, and two subsequent decisions respectively dated 6 September 2016 and 13 September 2016. The applicant alleges that the decision of respondent of 1 September 2016 was procedurally unfair, contained an error of law (namely misconstruing the concept of "fit and proper person" in s 14AA of the Thoroughbred Racing Act 1996), amounted to an unlawful restraint of trade, was made against good faith and for an improper purpose, was affected by apprehended bias and that Mr Peter V'landys, the Chief Executive of the respondent and author of the letter of 1 September 2016, was not a properly authorised delegate. 2. The applicant also alleges that the decision of 1 September 2016 was unreasonable in eight ways, including, relevantly because it was "unjustifiable discrimination": see par [70](f) of the Summons (Judicial Review). Power of the Tribunal to stay proceedings 1. As noted, the respondent seeks an order that the proceedings be stayed pending the determination, or at least the hearing, of the Supreme Court proceedings. 2. Neither party identified a power in the Civil and Administrative Tribunal Act 2013 (NCAT Act) to stay the proceedings. The respondent submitted that Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, a decision of the Appeal Panel, identified various principles where stays were sought pending an appeal. The respondent noted that because the present application sought a stay pending a determination of proceedings in another forum, and not the stay of a decision pending an appeal, not all of the factors set out in Bentran had application. The respondent submitted that the stay application should be determined after consideration of all the relevant circumstances, and in particular after a careful application of factors (5) and (6) in Bentran, namely, weighing the balance of convenience as between the parties and the overriding principle of what the interests of justice require. 3. Ms Webber, in principle, did not disagree with that approach. 4. In my view, the respondent is simply seeking an adjournment of the proceedings, albeit potentially a lengthy one. Section 51 of the NCAT Act provides the power to do so, and the Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement). This power must be read subject to the guiding principle set out in s 36, namely to facilitate the just, quick and cheap resolution of the real issues in the proceedings: see CHI v Children's Guardian [2016] NSWCATAD 151. It is not appropriate to import notions of the balance of convenience into applications of this nature. 5. In St George Wholesale Distributors Pty Ltd v Chief Commissioner for State Revenue [2014] NSWCATAD 134, the Tribunal considered s 51 and the considerations relevant to its application. The Tribunal observed at [12] that, on its terms, the s 51 discretion to adjourn is unconfined save with respect to the subject matter, scope and purpose of the statutory regime: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505.2 per Dixon J; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; (1992) 67 ALJR 170; [1992] HCA 66. The Tribunal then noted at [13] that the relevant statutory provisions of the NCAT Act included the following: 1. Section 3(c), which provides that the objects of the NCAT Act include ensuring that the Tribunal is accessible and responsive to the needs of all of its users; 2. Section 3(d), which provides that another object is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; 3. Section 3(e), which provides that the Tribunal is to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality. 1. The Tribunal noted at [14] that competing interests to be weighed in determining whether to adjourn or not include: 1. The interest of an applicant to have their claims heard and determined as quickly as possible; 2. The length of the adjournment sought; 3. Any inconvenience to the Tribunal; 4. The interest of the parties to have the issues in the case determined in a way that will be consistent with a decisions of another court and, the level of certainty that a particular issue will be addressed in those other proceedings, and when that is likely to occur: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527; 5. The general public interest in the administration of justice and the efficiency of the legal system: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Consideration 1. I will deal with each of these matters in turn. The interest of an applicant to have their claims heard and determined as quickly as possible 1. I accept as a starting point, as submitted by the applicant, that she is entitled to have her action tried in the ordinary course of the procedure and business of the Tribunal: Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 at 19; Voth v Manildra Flour Mills (1990) 171 CLR 538 at 550 approving Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay (1998) 165 CLR 197 at 241. This right has been described as a "fundamental principle": Rochfort at 19D. 2. I also accept that restraint of an action otherwise properly brought is "a very serious thing" and a "grave invasion of the rights of all subjects" that would only be allowed if permitting the action to proceed "would amount to an abuse of jurisdiction or would clearly inflict unnecessary injustice on the opposite party": Rochfort at 19D-F. That is, "it is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds": Sogelease v Griffin [2002] NSWSC 1099 at [8]. 3. In my view, this factor favours the refusal of the application for an adjournment. The length of the adjournment 1. The respondent seeks an adjournment until the hearing of the Supreme Court proceedings in April 2018. That is all very well, but even if the matter proceeds to finality, it is unknown when any judgment will be handed down. And, even if a judgment is delivered expeditiously, there is always the possibility of an appeal. The respondent submits that any injustice is cured by the Tribunal adjourning the application "until further order", that is allowing the applicant to come and make a fresh application for directions. I do not think it appropriate to make the applicant return to the Tribunal to seek directions from time to time in circumstances where she has validly invoked the jurisdiction of the Tribunal. 2. This factor favours the refusal of the application for an adjournment. Inconvenience to the Tribunal 1. The proceedings are in early stages of preparation and do not yet have a hearing date. The inconvenience to the Tribunal is therefore minimal: St George Wholesale Distributors at [19]; Complete Wardrobes & Showerscreens Pty Ltd v Chief Commissioner of State Revenue [2013] NSWADT 67 at [36]). 2. This is a neutral factor in considering the application for an adjournment. The interest of the parties to have the issues in the case determined in a way that will be consistent with a decisions of another court and, the level of certainty that a particular issue will be addressed in those other proceedings, and when that is likely to occur 1. This is the central issue in the application. The respondent submits that the substantive issues of alleged disability discrimination in the Tribunal proceedings are also part of the applicant's case in the Supreme Court proceedings; and that given the "substantial overlap" between the proceedings in the Supreme Court and the application before this Tribunal, these proceedings should be adjourned or stayed. The respondent submits that given the overlap between the proceedings in the Supreme Court and the application before this Tribunal, the Supreme Court proceedings raise for determination, and will likely decide, whether the respondent has contravened the direct and indirect disability provisions of the AD Act (that being the same issue that is being prosecuted in the these proceedings). 2. The applicant submits that the position is similar to those cases in which proceedings were commenced in the Supreme Court to enforce a contract or seek damages for its breach and concurrently in the Industrial Relations Commission under its former unfair contract jurisdiction to avoid or vary that contract under s 106 of the Industrial Relations Act 1996. In such cases, it was commonly held that, each court being asked to exercise jurisdiction that the other did not have, the concurrent proceedings should continue in their ordinary courses unimpeded by special intervention and that a stay of one would only be granted if it was shown "for some substantial reason that it is injurious to the attainment of justice that the proceedings should not be deferred" and that the prima facie right to a hearing "would not be overridden by any narrow balance of convenience": see The Owners-Strata Plan No. 51487 v Broadsand Pty Ltd [2001] NSWSC 813 per Bryson J at [1], [14] and [16]. 3. The applicant accepts that stays in such cases were granted if it was shown that there was a substantial identity of contested facts in both proceedings, the termination of one proceeding was likely to have a material effect on the other and there would be a significant waste of costs or judicial resources if the stay was refused: L & W Developments Pty Limited v Della [2003] NSWCA 140 at [57]). 4. The applicant relies on the observation of Bryson J in Broadsand at [10] that "Where the jurisdictional limits of courts differ it may well be acceptable and indeed it may be necessary to accept that two courts in this State should consider the same facts in different legal guises." The applicant submits that this is "especially so" because there is no mechanism by which proceedings in the Supreme Court and the Tribunal may be amalgamated or cross-vested into one proceeding (except, perhaps, to the limited extent that a question of law may be referred by the Tribunal to the Supreme Court). 5. At the heart of this application is a consideration of whether or not the two proceedings "directly overlap" (respondent's submissions pars [4], [15]), or whether (to use the language of Lockhardt J in Sterling Pharmaceuticals Pty Limited v The Boots Company Australia Pty Ltd (1992) 34 FCR 287 at 292) there is "substantial identity of issues in the two proceedings". 6. In the Supreme Court proceedings, the applicant seeks relief in respect of the decision of 1 September 2016 to refuse her 2016 licence renewal and cancel her existing licence and two other decisions. In respect of the decision of 1 September 2016, there are seven legal errors identified in the summons: procedural unfairness, misconstruction, unlawful restraint of trade, legal unreasonableness, improper purpose, reasonable apprehension of bias and unauthorised delegation. The legal unreasonableness ground has eight sub-grounds including, relevantly, that the decision amounted to (f) unjustifiable discrimination and (g) inconsistent with the treatment of other trainers. 7. The applicant submits, and I accept, that the concept of unjustifiable discrimination in administrative law is not confined to unlawful discrimination under an anti-discrimination statute. It is another way of expressing irrationality or unreasonableness, by treating materially like things or people differently. 8. The applicant submits, and I accept, that jurisdiction of the Supreme Court and that of the Tribunal in this case are distinct. The Supreme Court is being called on to exercise its supervisory jurisdiction as a superior court to grant relief on review of administrative decisions within the limits of ss 69 and 65 of the Supreme Court Act 1970 and common law principle and to exercise its power to grant declaratory relief under s 75 of that Act. The applicant submits, correctly in my view, that the Supreme Court does not have jurisdiction to hear a complaint under the AD Act or to grant any relief for a breach of that Act. 9. In my view, this is a strong factor favouring the refusal of the application for an adjournment. The general public interest in the administration of justice and the efficiency of the legal system 1. As was noted in Aon: 1. By French CU at [5]: … the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. 1. And by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [98]: a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. 1. In my view, this factor also favours the refusal of the application. Other factors 1. In addition to the foregoing, the respondent submits that there are a number of other matters warranting a stay or adjournment. These include the following. 1. The Supreme Court proceedings are scheduled for final hearing, and its decision in relation to disability discrimination is not only likely to be relevant to these proceedings but "may well in certain respects" bind the parties; 2. There will likely be time and cost savings if determination of the Tribunal proceedings awaits finalisation of the Supreme Court proceedings; 3. The applicant has applied for a training licence for the 2017/2018 year, which is presently being considered and is expected to be finalized in the next two months. 1. None of these matters, either in themselves, or cumulatively, support the application. Conclusion 1. In summary, for the above reasons, I do not accept the respondent's principal submission that the Supreme Court proceedings will decide the principal issue in the NCAT proceedings (that being the disability discrimination issue), and that therefore less time will be devoted in evidence and submissions to that issue in the these proceedings and costs reduced. I do not accept that the two proceedings "directly overlap" or that there is "substantial identity of issues in the two proceedings". In my view, neither that factor taken alone, or in conjunction with any other the matters raised by the applicant warrant the adjournment of the proceedings. 2. Nor do I accept that having the final hearing of these proceedings await determination of the Supreme Court proceedings would necessarily reduce the risk of inconsistent evidentiary findings (including as to credit) as between the evidence given in the Supreme Court proceedings and in these proceedings. 3. In L and W Developments Pty Ltd, an authority referred to by the applicant in her submissions, the Court referred to The Environmental Group Ltd v Croudace unreported, 7 August 1998, a decision of Santow J. Santow J followed Sterling Pharmaceuticals, analysed the nature of the Supreme Court proceedings which he had jurisdiction to determine and of the related proceedings in the Industrial Relations Commission which he did not have jurisdiction to determine. In conclusion, he stated, in terms which are applicable to the present application: Several things are therefore clear. First, neither the Supreme Court nor the IRC can deal with all matters in dispute between the parties. Second, if all are to be litigated it would be inevitable there will be two sets of proceedings. Thus while `the law should strive against permitting multiplicity of proceedings in relation to similar issues', here a multiplicity of proceedings may prove unavoidable. 1. The Supreme Court does not have jurisdiction to deal with the claims of the applicant made under the AD Act. Those claims must be heard and determined by the Tribunal. 2. The application for an adjournment until after the hearing of the Supreme Court proceedings is refused. 3. I see no reason why the proceedings should be adjourned to a date in June 2018. I consider that the proceedings before this Tribunal should proceed in the ordinary way. Directions 1. Having reached this conclusion, I turn now to directions for the future management of the matter. The respondent accepted that it could file points of defence by 23 February 2018, but asked that no other direction be made. 2. For her part, the applicant does not want to require the respondent to file its evidence yet, but does seek orders allowing her to request documents from the respondent, and for the respondent to respond. In my view, those directions are unnecessary, the applicant's legal representatives can make whatever requests they see fit, and if the respondent does not respond they can have a summons issued. 3. I make the following directions: 1. The respondent to file points of defence by 23 February 2018. 2. The matter be listed for directions before me at 9.30am on Friday 2 March 2018. On that occasion, subject to the submissions of the parties, I envisage making directions requiring the parties to file and serve evidence and submissions (a month for the applicant, a month to respond for the respondent and reply within two weeks for the applicant) and to fix a hearing date. Order 1. The Tribunal orders that: 1. The respondent's application to stay or adjourn the proceedings is refused. ​ ********** ​ 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: 16 February 2018