Budd v New South Wales Commissioner of Police

[2006] NSWSC 1266

CITATION:	Budd v New South Wales Commissioner of Police [2006] NSWSC 1266
HEARING DATE(S):	16/11/06
JUDGMENT DATE :	16 November 2006
JUDGMENT OF:	Bell J at 1
EX TEMPORE JUDGMENT DATE:	11/16/2006
DECISION:	Amended summons is dismissed
LEGISLATION CITED:	Anti-Discrimination Act 1977 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CASES CITED:	Ella v State of New South Wales [2005] 145 ADT Budd v State of New South Wales (NSW Police) [2006] NSWADT 14 Ella v State of New South Wales [2005] 145 ADT Russell v Commissioner of Police, NSW Police Service & Ors [2001] NSWADT 32
PARTIES:	Pamela Joan Budd (Appellant) New South Wales Commissioner of Police (Respondent)
FILE NUMBER(S):	SC 30031/06
COUNSEL:	Self Represented (Appellant) S Free (Respondent)
SOLICITORS:	Self Represented (Appellant) I V Knight (Respondent)
LOWER COURT JURISDICTION:	Administrative Decisions Tribunal
LOWER COURT FILE NUMBER(S):	051087; 051068
LOWER COURT JUDICIAL OFFICER :	Hennessy N
LOWER COURT DATE OF DECISION:	16/1/06
LOWER COURT MEDIUM NEUTRAL CITATION:	Budd v State of New South Wales (New South Wales Police) [2006] NSWADT 14

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BELL J

Thursday 16 November 2006

30031/06 - PAMELA JOAN THERESA BUDD v NEW SOUTH WALES COMMISSIONER OF POLICE

JUDGMENT

1 HER HONOUR: The Commissioner of Police, by notice of motion dated 1 September 2006, claims an order that the proceedings be dismissed generally pursuant to Pt 13.4 of the Uniform Civil Procedure Rules 2005, the UCPR.

2 The plaintiff is said to suffer from a number of conditions including agoraphobia and social phobia. For that reason she requested that her submissions be received by telephone. Mr Free, who appears on behalf the Commissioner of Police, consented to that course and, in those circumstances, I made an order pursuant to r 31.3 of the UCPR that the plaintiff's submissions be received by telephone.

3 The plaintiff in her amended summons purports to bring an appeal and in the statement of the grounds of appeal asserts, "see my submissions attached, see my attached letter." In a document, dated 20 April 2006, the plaintiff identifies a number of claimed errors of law in the decision of the Administrative Decisions Tribunal (the Tribunal), Budd v State of New South Wales (NSW Police) [2006] NSW ADT 14.

4 The present proceedings are one of a number of proceedings commenced by the plaintiff and the submissions to which I have referred, dated 20 April 2006, are concerned with these proceedings and with other proceedings.

5 The amended summons does not clearly identify the proceedings that are the subject of appeal. It has been approached by the Commissioner upon the basis that it is an attempt to appeal against the Tribunal’s decision to which I have referred. From her written submissions and from the further oral submissions this appears to be the case and I approach the determination of the present application upon this basis.

6 I turn now to the relief that is claimed. It is as follows:

“Orders to have the agency pay medical and legal costs and out-of-pocket (& compensation) for pain and suffering caused from contravention of Anti-Discrimination Act against me, psychiatric, mental suffering, physical pain."

7 The subject matter of the proceedings before the Tribunal concerns two complaints brought by the plaintiff each contending that she had been unlawfully discriminated against by those for whom the defendant is responsible. Each of the complaints involved a claim of unlawful discrimination on the ground of disability in the provision of services pursuant to section 49M of the Anti-Discrimination Act 1977 (the ADA). The complaints were declined by the President of the Anti-Discrimination Board as lacking in substance.

8 Section 96 of the ADA provides:

In the case of a complaint that has been declined as lacking in substance it may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

9 The plaintiff sought leave in relation to each of her complaints and in each instance leave was refused. Section 96(4) provides:

A decision of the tribunal under this section with respect to the granting of leave cannot be the subject of an appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act.

10 A statutory right of appeal to this court lies on a question of law against any decision of an Appeal Panel of the Tribunal. No provision is made under the legislative scheme for an appeal to this court against the decision of the Tribunal refusing leave pursuant to section 96 of the ADA.

11 The plaintiff's summons, to the extent that it purports to be an appeal from the determination to which I have referred, is misconceived.

12 In her submissions the applicant asserts error of law in the determination of the Tribunal.

13 Section 69 of the Supreme Court Act 1970 confers jurisdiction on the Court to grant any relief or remedy in the nature of certiorari if the determination the subject of the proceedings has been made on the basis of an error of law that appears on the face of the record. The face of the record includes the reasons expressed by the Tribunal for the ultimate determination: s 69(4).

14 The Commissioner has approached the motion upon the basis that the originating process, while not conforming with the Uniform Civil Procedure Rules and while not properly formulated as a claim for relief under s 69, might nonetheless be understood as an endeavour to claim relief of this character. It is to be observed that the applicant is not legally represented and that she has appeared on her own behalf in order to resist the order for summary dismissal.

15 Against this background I turn to the decision of the Tribunal. The factual background to each of the two incidents the subject of the first complaint includes that the plaintiff and her neighbour were each the subject of apprehended violence orders relating to one another, and it would seem there was some history of disputes concerning the enforcement of them. The Tribunal notes that the first complaint (file No. 011069) alleged a number of matters, some of which occurred outside the statutory time limit for complaints.

16 The Tribunal said of the first complaint, with respect to the matter that was within the time limit, which related to police officers knocking on the plaintiff's door on 22 August 2004 that:

Whether or not she was actually in breach of the AVO order is not the point. Neither is the motivation of her neighbour in contacting the police. The only potentially relevant point is that police officers, despite knowing of her disability, demanded that she open the door. If this matter went to a hearing the onus would be on Ms Budd to establish that New South Wales police were in breach of the ADA.

17 The Tribunal went on to note the terms of Section 49M of the ADA. The Tribunal then considered a number of authorities including the decision of Sully J in Russell v Commissioner of Police, NSW Police Service & Ors [2001] NSWADT 32 particularly at [43] and [44]. The Tribunal approached the matter upon the basis that a police officer investigating an allegation that a person has committed an offence, or is in breach of an AVO, is not providing services for the purposes of s 49M of the ADA, and accordingly that the complaint of discrimination on the ground of disability in the provision of services by the Police had no reasonable prospects of success.

18 Turning to the second complaint (file No. 051087), the Tribunal noted it involved an allegation that a police officer had refused to properly re-investigate allegations that the plaintiff's sister had fraudulently deprived her of ownership of a property in 1977 and, additionally, an allegation that the officer had decided not to proceed with the prosecution of her sister because he had formed a view that the Local Court would not accept the plaintiff's evidence or that she would not be able to give oral evidence in court by reason of her disability.

19 In considering this complaint, the Tribunal referred to its decision in Ella v State of New South Wales [2005] 145 ADT and the decision of the Tasmanian Supreme Court in Anti-Discrimination Commissioner v Acting Ombudsman [2003] 2 ADT at 4. It concluded that a decision not to commence a criminal prosecution does not amount to the refusal of a service to the alleged victim of the crime. In the Tribunal's view, this complaint did not have reasonable prospects of success and leave was refused.

20 The plaintiff contends that the Tribunal erred in a number of respects. In the course of oral submissions, she complained that the Tribunal's reasons were inadequate to the degree that it constituted error of law. The Tribunal's reasons are adequately exposed and I am not persuaded that there is any substance to this challenge.

21 The plaintiff’s written submissions contain a number of assertions concerning the factual merits of the matters the subject of the complaint and do not identify any error in the approach that the Tribunal took to the determination of the leave applications. By way of illustration the plaintiff contends that the Tribunal erred in applying what she characterises as incorrect logic. She develops this submission by reference to factual matters relating to her medical difficulties, which I take to be relied upon in the context of the background that gave rise to a complaint: namely, that police officers knowing she suffers from agoraphobia, nonetheless knocked on her door. Complaints of this character, differently expressed, appear in a number of passages of her submissions. I do not identify in the written submissions, or in the matters that the plaintiff has developed in oral submissions, any arguable error of law in the Tribunal's reasons. I consider that the Commissioner has made good the contention that the proceedings are manifestly hopeless and for these reasons I dismiss the amended summons.

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