Budd v State of New South Wales (Attorney General's Department)

[2009] NSWADT 217

CITATION:	Budd v State of New South Wales (Attorney General’s Department) [2009] NSWADT 217
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Pamela Budd Respondent: State of New South Wales (Attorney General's Department)
FILE NUMBER:	091027
HEARING DATES:	9 July 2009
SUBMISSIONS CLOSED:	28 July 2009
DATE OF DECISION:	17 August 2009
BEFORE:	Kavanagh J
CATCHWORDS:	Application for leave to appeal - s96 of Anti-Discrimination Act 1977 - complaint that appointed representative discriminated against applicant - President of Anti-Discrimination Board determined complaint lacking in substance - consideration of leave to appeal - test applicable to leave application - leave refused
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Housing Act 2001
CASES CITED:	Budd v State of New South Wales (Attorney General’s Department) [2008] NSWADT 239 City of Sydney Council v Satara [2007] NSWCA 148 Ekermawi v Administrative Decisions Tribunal of New South Wales and Ors [2009] NSWSC 143 Graham v State of NSW Director General, NSW Department of Health, in respect of Ambulance Service Division [2008] NSWADT 270 NZ v NSW Land and Housing Corporation [2006] NSWADT 126 Salido v Nominal Defendant (1993) 32 NSWLR 524 State of Queensland & Anor v J L Holdings Pty Ltd (1997) 189 CLR 146 Xu v Sydney West Area Health Service [2006] NSWADT 3
REPRESENTATION:	Applicant Representative: In person Respondent Representative: Mr J. Cahill, solicitor
ORDERS:	The application by Ms Budd for leave of the Tribunal to proceed with a complaint under s92(1) of the Act is refused and the application is dismissed.

REASONS FOR DECISION

1 Pursuant to s 14 (2)(b) and s 14 (5)(b) of the Administrative Decisions Tribunal Act 1997, I have been requested by the President of the Administrative Decisions Tribunal to hear and determine an application pursuant to s 96 of the Anti-Discrimination Act 1977 (the Act). Pamela Budd seeks leave of the Tribunal to proceed with a complaint under s 92(1) of the Anti-Discrimination Act 1977 against a Tribunal nominated representative. For technical reasons, it has been necessary to refer to the respondent as the New South Wales Attorney General’s Department (Administrative Decisions Tribunal).

2 On or about 4 June 2008, Pamela Budd lodged a complaint under ss 49A, 49B, 49C and 49M of the Anti-Discrimination Act 1977 of disability discrimination against Ms Barbara Ramjan on 23 May 2006. Ms Ramjan had been appointed by the Administrative Decisions Tribunal, pursuant to s 571(4) of the Administrative Decisions Tribunal Act 1997, as a representative for Ms Budd in relation to proceedings Ms Budd brought against the Department of Housing (now the NSW Land and Housing Corporation) (NZ v NSW Land and Housing Corporation [2006] NSWADT 126).

3 The proceedings were settled by a Deed of Agreement dated 1 August 2006 ("the Deed") entered into by the parties, signed by Ms Ramjan in her capacity as Ms Budd's representative. Ms Budd has not included a complete copy of the Deed in the materials she has submitted, however, incomplete copies of some pages are before me.

4 The acts and/or omissions subject to the complaint are alleged to have taken place from February 2007 to June 2008. The complaint was received by the Board on 4 June 2008. Section 89B(2)(b) of the Act provides the President of the Board may decline a complaint if :

... the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint ...

5 On or about 6 March 2009, the Board notified Ms Budd the Delegate of the President determined not to accept those parts of Ms Budd's claims that fell outside the statutory time limits set by s 89B(2)(b) of the Act. However, the material submitted to the Board by Ms Budd in support of the complaint does not clearly identify when she claims each of the acts and/or omissions subject to the complaint occurred. Therefore, the imposition of the statutory deadline does not resolve the complaint.

6 On or about 6 March 2009, the President of the Anti-Discrimination Board declined the complaint under s 92(1) of the Act on the grounds it was lacking in substance.

7 On 10 March 2009, Ms Budd requested the President of the Board to refer the complaint to the Tribunal for the purposes of s 93A of the Act, which section allows the President of the Board's ruling to go before the Tribunal. However, leave of the Tribunal must be sought.

The Complaint

8 Ms Budd complained on 4 June 2008, in a document of 21 pages, that Ms Ramjan, her Tribunal appointed representative, failed to achieve promised outcomes which failures, Ms Budd claims, led to an exacerbation of her disabilities. Ms Budd asserts Ms Ramjan failed to provide her with a new home, bathroom renovations, cupboard replacement, disability parking access and a failure to keep the common area (outside Units 37 and 38 at her residence) cleared for her "mental therapy".

9 On 4 June 2008 Ms Budd wrote the following:

This is my new complaint as per above against Mrs Barbara Ranjam who was my ADT guardian.

During my dealings with her she preached the "ABD" Disability Discrimination Act against me. She promised to do her work ADT guardian she was to ensure the bathroom renovation for me from the DOH. She agreed to do this to the ADT when she untaken her guardianship for me. Her role was to provide me (1) bathroom renovation (2) cupboard replacement (3) disability parking access (4) keep common area cleared for my mental therapy. All this she promsied (sic) to do for me and guaranteed this to me at my home fact to face in early Feberuary (sic) 2007 and prior to that she agreed to this in writing and verbal. That was her agreed promised to do this - she rang me early Feb 2007 and prior to that telling me "Oh if the DOH don't give you any new home you'll get your bathroom renovation and your disabled parking and cupboard replacement and common area kept clear. You will get this as you must have it for your mental cognitive therapy for your "agoraphobia and social phobia, situational phobia, anxiety attacks, panic disorders".

Principles governing leave

10 Ms Budd bears the onus of satisfying the Administrative Decisions Tribunal it should grant leave pursuant to s 96 of the Act (Budd v State of New South Wales (New South Wales Police) [2006] NSWADT 14 at [6]; Ekermawi v Administrative Decisions Tribunal of New South Wales and Ors [2009] NSWSC 143 at [17]).

11 The relevant considerations for a grant of leave under s96 of the Act were addressed in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors (on appeal). Schmidt AJ (as she then was), in adopting the view expressed by Gleeson J in Salido v Nominal Defendant (1993) 32 NSWLR 524, held the correct approach to determining the question of leave pursuant to s 96(1) was to identify whether it was "fair and just to grant or refuse leave in the particular circumstances". In this regard Schmidt AJ said (at [38]):

The emphasis in s.73 (3) [of the Administrative Decisions Tribunal Act ] on 'equity, good conscience and the substantial merits of the case', is an emphasis entirely consistent with approaching the question of leave on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward. That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obvious meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

12 Schmidt AJ therefore rejected the test as applied by Hennessy DP in Xu v Sydney West Area Health Service [2006] NSWADT 3 at [17] that for leave to be granted, the Tribunal should be satisfied the appellant has provided "a substantive reason for leave to be granted."

13 I adopt the view, as expressed by Schmidt AJ, and will determine whether, on the evidence it is fair and just in the circumstances to grant leave, that is, the Tribunal will consider what is fair and just taking into account the interests of both parties in the particular circumstances.

14 The respondent submits Ms Budd has not discharged the onus of showing why it is "fair and just" that she should be granted leave under s 96(1) of the Act as:

(a) the act(s) complained of by Ms Budd do not constitute unlawful discrimination, as the Attorney-General's Department did not:
(i) treat Ms Budd "less favourably" than she would have treated another person without her disabilities in the same or similar circumstances;
(ii) require Ms Budd to "comply with a requirement or condition" within the meaning of s.49B(1) of the Act;
(iii) do any of the acts complained of on the grounds of Ms Budd's disability;
(b) neither the State nor Ms Ramjan is the proper Respondent to the Complaint; and/or
(c) the conduct complained of did not amount to either a failure to provide a service or the imposition of terms on which a service was provided.

Adjournment

15 Two particular complaints have been made by Ms Budd and referred to the Tribunal. One complaint against the Registry and the other against a Tribunal appointed representative. This decision is the consideration by the Tribunal of the complaint re her Tribunal appointed representative. The complaint related to the restrictions placed upon her access to the Registry are dealt with in a separate decision.

16 The President of the Board, after finding each matter was lacking in substance, on Ms Budd's request referred each complaint to the Tribunal. Both matters were set down for hearing on 9 July 2009 for the convenience of Ms Budd.

17 Ms Budd was notified of the hearing on 19 June 2009. Ms Budd, on 6 July 2009, requested an adjournment of the hearing date of 9 July 2009. Ms Budd, in submission, asked for the adjournment on the ground she was ill and "the ADB made severe mistakes" and she wanted a review of its errors by the Board before the complaint was forwarded to the Tribunal.

18 The Registrar then wrote back to Ms Budd on the same day advising her that Practice Note No. 04 outlined the procedure a party must follow to make an adjournment application. A copy of Practice Note No. 4 was forwarded to her, which Practice Note was in the following terms:

ADMINISTRATIVE DECISIONS TRIBUNAL

PRACTICE NOTE No. 4 (PN4/00)

Application to Change Hearing Dates

On 2 January 2001 the Tribunal will introduce a new policy on the applications for change of hearing dates that have been set in matters before the Tribunal and the Appeal Panel of the Tribunal. This policy will apply to all Divisions of the Tribunal.

A hearing date will only be changed where it can be shown to the satisfaction of the Presiding Member that circumstances have arisen which are beyond the control of the parties or their representatives.

A party wishing to make an application to change a hearing date will need to consult with the other party prior to making an application to the Tribunal. The application will need to be in writing setting out the reasons for the application and informing the Tribunal whether the other party consents or does not consent to the application.

An application to change a hearing date by consent without explanation will not ordinarily be granted nor will applications based on practitioner unavailability.

Judge KEVIN O’CONNOR

President

12 December 2000

There was no evidence before me that Ms Budd, prior to the hearing date, complied with the provisions of the Practice Note No. 4.

19 Ms Budd (who because of her disabilities does not attend the Tribunal) was telephoned on the hearing date, 9 July 2009, to hear her application for an adjournment and/or the substantive matter of her complaint against the Tribunal appointed representative. Consistently she answered the telephone and, on the identification of the Tribunal to her, hung up the telephone. Correspondence from her acknowledges receipt of these calls.

20 The respondent opposed Ms Budd's adjournment application.

21 The Tribunal first considered Ms Budd's adjournment application. The Tribunal had power to grant the adjournment sought if justice requires that outcome. As the Court of Appeal in City of Sydney Council vSatara [2007] NSWCA 148 observed at [31]:

A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice: Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA; at 210–211 per Holmes JA.

22 The overall aim is the attainment of justice (State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146). The Tribunal must do what justice requires as between the parties to the appeal. The Tribunal must, in considering the applicant's application for an adjournment, determine whether the respondent to the appeal would be denied justice if the adjournment was granted, as well as to consider whether to refuse the adjournment would prejudice the applicant to the point of denying her justice in proceeding with her complaint.

23 I considered all the matters placed before me including, in the interests of justice, the various statements made by Ms Budd and her medical evidence. The medical evidence provided endorsed the fact, which is not in question, that Ms Budd has a disability. However, it provided no particular support for an adjournment application.

24 The applicant's explanation she is not well is not an acceptable explanation for the grant of an adjournment. I accept Ms Budd's medical condition varies in its severity but that is not a reason for a particular adjournment. The medical evidence Ms Budd has supplied is in support of the fact she has a disability. That is not in question. It does not address specifically, support for an adjournment. Ms Budd has chosen to litigate and must take responsibility for that decision. She simply relied upon the fact it is her opinion the President of the Board had made a mistake.

25 The applicant, having chosen to be self-represented, failed, in my view, to proffer any substantial reason or support for her application for an adjournment. She, in writing, noted she has made the submissions she relies upon in support of her application. She further acknowledged they have been forwarded to the respondent.

26 There is a public interest in the prompt conduct of litigation. On the date set down for hearing I rejected the application made by Ms Budd for an adjournment.

27 I was further satisfied Ms Budd had had every opportunity to make submissions on the question of leave to appeal the President's decision.

28 The Tribunal then received submissions as to the question of leave from the respondent. Those submissions were in writing. The Tribunal then determined to allow Ms Budd a further two weeks to reply to the respondent's submissions on the question of leave. Ms Budd has sent two replies. One on 15 July 2009, the other on 23 July 2009.

29 Ms Budd contends she suffered "mental abuse" by Ms Ramjan in her representation of Ms Budd. Ms Budd's submissions on 17 July 2009 were couched in the following terms:

As you can see I have major DOH problems. Due to Ms Ranjam's discrimination of my illness, she failed to represent me in my best interests, and I ended having to do the her work, which the ADT appoint her to do. I had to do it all these issue what she signed a legal deed to do with pro bono lawyers Gilbert and Toebem. She failed to do nothing, she breached this confidential deed she made with the DOH - she then mentally abuse me and refuse to comply to do her agreement failed to provide all these items emergency facility for me and my son sole carer, who I depend on for daily caring, she left it all for to me with my mental illness, which, cause me that damage to my health. I had to get the nuns and Mayor Bruce - notely Smith from council and my son, and other priests to help me to get the bath, the other issues. Ms Ranjam, she did not do zero for me, she so this is why she pulled out with due to her disability discrimination to me. And left me to sit here and to perish and to suffer. Even if she did not get the house which was meant to get that too, she told me and promised and agreed in writing legal documents, to provide all these issues facility for me from the DOH.

So, she lied me to and my doctors and to my son (he was not a party to none of this). And then she left me to perish.

30 On 23 July 2009 she also wrote:

I have asked the ADT to not go ahead at this time until the ABD clear it up and I have wrote to ABD to do this again today. I may also seek a agent or legal aid for the Ms Ranjam case and AG or a agent.

31 Ms Budd contends the Tribunal discriminated against her on the basis of her disability (ss 49A, B and C) with respect to the provision of goods and services (s 49M), in breach of s 49 of the Act. Section 49M of the Act relevantly provides:

49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability;
a. by refusing to provide the person with those goods or services, or
b. in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

32 The service Ms Ramjan was providing was to act as Ms Budd's representative. Ms Budd does not allege that Ms Ramjan did not act as her representative. Ms Budd rather alleges that, in providing this service, Ms Ramjan did not achieve the outcomes desired by Ms Budd. I reject the proposition Ms Ramjan failed to provide a service to Ms Budd.

33 To establish discrimination under s 49M, Ms Budd would have to establish either Ms Ramjan refused to provide her with a service or Ms Ramjan discriminated against her in the "terms" on which those services were provided.

34 Ms Budd in reply corresponded on two occasions. She was given an opportunity to reply to the respondent's submissions on leave after the hearing. In each correspondence she requested again an adjournment. It was not until 23 July 2009 that she first informed the Tribunal she wished to obtain legal advice or agent or legal aid for this complaint. However, this was not a ground for her original application, nor can it be a ground to defer the Tribunal's decision at this stage of the hearing. Ms Budd, as I have said, chose to litigate and if this was to be an issue it should have been an application made in support of the adjournment, not put in her second reply to the respondent's submissions on leave.

35 Further, the complaint does not allege that Ms Ramjan provided her services on discriminatory "terms". The complaint is directed to the outcome achieved by the provision of the service and the manner in which it was provided and neither of these constitute discrimination in the "terms" upon which a service is provided (Graham v State of NSW Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT 270 at [91] and [94]).

36 While Ms Budd has not characterised the complaint as either direct or indirect discrimination within s 49B(1)(a) or (b) of the Act, I will consider both elements to a breach.

37 Section 49B(1)(a) and (b) of the Anti-Discrimination Act 1977 is as follows:

49B What constitutes discrimination on the ground of disability
(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

Direct disability discrimination

38 To establish Ms Ramjan's conduct constituted direct disability discrimination under the Act, Ms Budd must prove the conduct of Ms Ramjan in the litigation was affected by Ms Budd's disabilities and Ms Ramjan treated Ms Budd less favourably, than she did or would treat someone without Ms Budd's disabilities in the same circumstances, or in similar circumstances which are not materially different.

39 The complaint does not allege either of the above matters, nor is there any direct evidence from which an inference can be drawn to prove the above. Therefore Ms Budd's direct disability discrimination complaint fails.

Indirect disability discrimination

40 To establish indirect discrimination under the Act, Ms Budd must establish Ms Ramjan required her to comply with a requirement or condition, or that Ms Budd could not, because of her disabilities, comply with that requirement or condition, but that others without her disabilities could comply with that requirement or condition and that the requirement or condition was unreasonable.

41 The complaint does not allege the existence of any such requirement or condition, nor any of the other matters required to establish a claim of indirect disability discrimination. Further, there is no evidence, either direct or from which an inference can be drawn, that Ms Ramjan acted to indirectly discriminate against Ms Budd. Ms Budd's indirect disability discrimination complaint therefore fails.

42 The onus to demonstrate a breach of the Act is on Ms Budd. I am satisfied Ms Budd has failed to discharge that onus as there is no direct evidence, nor evidence from which an inference can be drawn, that Ms Ramjan either treated Ms Budd less favourably than she would have treated a person without Ms Budd's disabilities in the same or not materially different circumstances; that the alleged treatment (for example, the alleged acts and/or omissions of Ms Ramjan) have established the ground of discrimination (being Ms Budd's disabilities); or that Ms Ramjan imposed any condition or requirement with which Ms Budd could not comply because of her disabilities.

43 Ms Budd therefore has no prospect of succeeding in making out her complaint. In such a circumstance, I find it would not be just and fair to grant leave to appeal.

Proper respondent to the Complaint

44 The material before the Tribunal indicates the acts and/or omissions of which Ms Budd complains are the alleged acts and/or omissions, Ms Budd asserts, of Ms Ramjan. The respondent submits Ms Ramjan does not have any connection with the Tribunal and/or the Department. Ms Ramjan is not an employee of, or a contractor engaged by, the ADT and/or the Department, the respondent submits. Ms Ramjan was appointed by the Tribunal under s 71(4) of the Act to represent Ms Budd. The Tribunal determined Ms Budd was an "incapacitated person", as defined by s 71(7)(b) of the Act, and therefore was either totally or partially incapable of representing herself in the relevant proceedings before the Tribunal. In carrying out her obligations as Ms Budd's representative, Ms Ramjan was not under the direction or control of the Department. Ms Ramjan, the Department submits, is not the proper respondent.

45 Sections 71(4) and (7)(b) of the Administrative Decisions TribunalAct indicate that Ms Ramjan's obligations were limited to representing Ms Budd in proceedings before the Tribunal. Those obligations included impartially and objectively determining Ms Budd's best interests and tendering evidence and/or making submissions to the Tribunal in accordance with those interests. Ms Ramjan's duties, I accept, did not extend to ensuring that the terms of the Deed entered into in the proceedings were complied with. Ms Ramjan was not appointed as guardian ad litem for Ms Budd.

46 The NSW Land and Housing Corporation is the entity responsible for the allocation, maintenance and control of public housing under the Housing Act 2001. The acts and/or omissions pleaded by Ms Budd could be the responsibility of the NSW Land and Housing Corporation (as it now is) depending on what was agreed and what the Deed provided. As the respondent to the proceedings brought by Ms Budd, that Department (Corporation) would be responsible for addressing the matters the subject of the settlement agreement reached (NZ v NSW Land and Housing Corporation [2006] NSWADT 126) (p2 of the Deed).

47 The respondent submits it follows, as neither the Department nor Ms Ramjan are responsible for the alleged discrimination acts - that is, the failure to provide the amenities Ms Budd seeks, they cannot be the proper respondent to the complaint.

48 The Tribunal is asked for a finding the Department (Attorney General) and Ms Ramjan are not the proper respondents. I do not so hold. There have been no submissions placed before me on the leave question related to the responsibilities carried by the Tribunal appointed advocates. Ms Ramjan was appointed by the Tribunal to act on behalf of Ms Budd. Given my view there is no prospect that Ms Budd could succeed in her complaint, I do not accept it is necessary to address this issue.

49 The application by Ms Budd for leave of the Tribunal to proceed with a complaint under s 92(1) of the Act is refused and the application is dismissed.