Budd v State of New South Wales (New South Wales Police) (GD)

[2007] NSWADTAP 55

Appeal Panel - Internal

CITATION:	Budd v State of New South Wales (New South Wales Police) (GD) [2007] NSWADTAP 55
PARTIES:	APPELLANT Pamela Budd RESPONDENT State of New South Wales (New South Wales Police)
FILE NUMBER:	079042
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 July 2007
DATE OF DECISION:	3 October 2007
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Ant-Discrimination Act, s 96(4) - application for leave to proceed - leave refused. ADT Act, s 112 - jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	071015
DATE OF DECISION UNDER APPEAL:	04/17/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Budd v State of NSW (NSW Police) [2007] NSWADT 88
REPRESENTATION:	APPELLANT In person RESPONDENT Inspector J Philippi
ORDERS:	Appeal Panel does not have jurisdiction. Appeal summarily dismissed

1 The Anti-Discrimination Act 1977 (AD Act) requires complainants of unlawful discrimination first to make their complaints to the Anti-Discrimination Board (the ADB). There is no right of direct complaint to the Tribunal. The President of the ADB has a discretion whether to refer a complaint. If, as here, the discretion is exercised adversely to the complainant, the complainant must obtain the leave of the Tribunal for the matter to proceed in the Tribunal: s 96. This proceeding relates to a refusal to grant leave: see Budd v State of NSW (NSW Police) [2007] NSWADT 88.

2 The complainant has now lodged with the Tribunal a notice of appeal, purporting to be an appeal against the Tribunal’s decision. The question arises whether it should be summarily dismissed. Consideration of the question of summary dismissal involves the exercise of an interlocutory function. Such a function may be exercised by an Appeal Panel constituted by a presidential member sitting alone, assigned for that purpose by the President: see Administrative Decisions Tribunal Act 1997: s 24A(2)(a).

3 Section 96 of the AD Act provides:

‘ 96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

(2) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal.

(3) Subsection (2) does not affect the operation of section 73 (Procedure of the Tribunal generally) of the Administrative Decisions Tribunal Act 1997 in relation to evidence given before, or findings made by, the Industrial Relations Commission.

(4) 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 1997.’

4 The Appeal Panel’s jurisdiction to entertain appeals is conferred by s 112 which belongs to Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997:

‘ 112 Appealable decisions of the Tribunal

(1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for:

(a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or

(b) a review of a reviewable decision.

(2) Without limiting subsection (1), the following decisions are also appealable decisions:

(a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or

(b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or

(c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal.

(3) A decision of an Appeal Panel (including any such decision made in relation to an external appeal) is not an appealable decision for the purposes of this Part.’

5 An ‘original decision’ is a decision of the Tribunal made in relation to a matter over which it has jurisdiction under an enactment to act as the primary decision-maker: s7. If leave was granted, the complainant would be involved in proceedings for an original decision. The consideration of leave may be characterised as a decision made in proceedings for an original decision.

6 It will be seen that the condition specified in s 112(1)(a) is not met, as there is no provision in the AD Act expressly providing that a decision under s 96 may be appealed. The effect of s 96(4) is, clearly, to place an absolute bar on any further appeal in respect of complaints that have been declined and subsequently refused leave to proceed by the Tribunal.

7 The appellant did, it seems, make an attempt to appeal the Tribunal’s decision in the Supreme Court. Her filed material includes a short decision dated 7 May 2007 by Registrar Schell of the Supreme Court. The appellant lodged an appeal to the Supreme Court purporting to rely on s 119 of the ADT Act. The Registrar in dealing with a related application for a fee waiver determined that the underlying proceeding (the purported appeal) was incompetent. The Registrar noted that a s 119 appeal to the Supreme Court could only be brought against an Appeal Panel decision, and there was none in this case. The Registrar went on to state that the appellant must bring any appeal to an Appeal Panel of the ADT before being able to exercise the right under s 119. The Registrar, understandably, looked only at the general provisions of the ADT Act, and did not turn his mind to the primary legislation, the AD Act and s 96.

8 The appeal is summarily dismissed.

Order

Appeal Panel does not have jurisdiction. Appeal summarily dismissed.