Budd v State of NSW (NSW Police)

[2007] NSWADT 88

CITATION:	Budd v State of NSW (NSW Police) [2007] NSWADT 88
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pamela Budd RESPONDENT State of NSW (NSW Police)
FILE NUMBER:	071015
HEARING DATES:	14 March 2007
SUBMISSIONS CLOSED:	14 March 2007
DATE OF DECISION:	17 April 2007
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to proceed
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Crimes Act 1900 Local Courts (Criminal and Applications Procedure) Rule 2003 Local Courts Act 1982
REPRESENTATION:	APPLICANT In person RESPONDENT Inspector J Philippi
ORDERS:	Leave is refused

Introduction

1 Ms Budd is asking for the Tribunal’s permission to go ahead with a complaint of disability discrimination against the Commissioner of Police. The President of the Anti-Discrimination Board (ADB) declined the complaint as not disclosing a contravention of the Anti-Discrimination Act 1977 (AD Act). When the President declines a complaint on that ground, s 96 requires the applicant to obtain the Tribunal’s permission (or “leave”) before the complaint can go ahead. Ms Budd suffers from agoraphobia and social phobia. She rarely leaves her home and has great difficulty speaking to people face to face. She conducts all her litigation by facsimile and by phone. She asked the Tribunal to decide whether to give her permission to go ahead with the complaint “on the papers” that is, without having a hearing. I agreed to that proposal which is permitted under s 76 of the Administrative Decision Tribunal Act 1997 (ADT Act).

Background to the complaint

2 My understanding of the background to this complaint is that Ms Budd wants to obtain an apprehended personal violence order (APVO) against her neighbour. She says that Inspector O’Reilly from Maroubra Police Station refused to serve her application.

3 In order to better understand Ms Budd’s complaint, I need to set out some of the basic procedure for applying for, serving and obtaining an APVO. The Local Court has power to make an APVO “on application” in certain circumstances: Crimes Act 1900, s 562K. An application may only be made by the person requesting protection or a police officer: Crimes Act, s 562ZQ(2). An application for an APVO is to be made in accordance with Part 6 of the Local Courts Act 1982: Crimes Act, s 562ZQ(1).

4 Section 39, which is in Part 6, states that application proceedings may be commenced by issuing an application notice, signed by a registrar, and filing the notice in Court. A registrar must refuse to sign an application notice if, for example, the registrar is of the opinion that the notice does not disclose grounds for the proceedings: 36(2)(a). If a registrar refuses to sign an application notice, the matter goes before the Local Court to determine whether the application notice is to be signed and issued. An application notice must be served by a person authorised by the rules and in accordance with the rules: Local Court Act, s 42(3). Under the Cl 25 of the Local Courts (Criminal and Applications Procedure) Rule 2003, an application notice commenced by private action may be served by:

(a) the person who issued the notice,

(b) a licensed commercial agent engaged by the person,

(c) a sheriff’s officer,

(d) a relevant legal practitioner acting for the person or an employee of any such legal practitioner,

(e) if the respondent is a public officer or a police officer, the registrar.

5 After filing and service, the application is heard and the Magistrate decides whether or not to make an APVO.

6 As far as I can ascertain from the material before me, Ms Budd asked her solicitor to commence a private action to obtain an APVO against her neighbour. The report of the President of the Anti-Discrimination Board to the Tribunal includes (at p 319) a copy of a barely legible document entitled Complaint- Apprehended Violence, apparently signed by Ms Budd on 22 March 2006. While the document is signed by a registrar (an authorised justice) there is no Summons to the defendant (Ms Budd’s neighbour) requiring her to appear at the Local Court to answer the complaint. Instead of a Summons, the document contains a Notice of Listing stating that the complaint is listed for mention at Waverly Local Court on 7 April 2006. At p 325 of the President’s report is a letter from the Registrar of the Waverley Court to Ms Budd dated 10 April 2006 explaining what happened on 7 April 2006. That letter is headed “Review of the Decision by an Authorised Justice to refuse to issue a summons in a complaint filed by Pamela Budd.” The Registrar said in the letter that the Magistrate had adjourned the proceedings to 28 April 2006. On the basis of this letter, it appears that the Registrar refused to issue a summons in relation to Ms Budd’s complaint. That accords with Inspector O’Reilly’s understanding of what happened. He said that a summons in respect of Ms Budd’s APVO complaint was never issued. There is no evidence, that I was able to identify, of what occurred at the Local Court on 28 April 2006.

7 On the basis of all the evidence, I am satisfied that a summons was not issued in relation to Ms Budd’s application for an APVO.

Conclusion

8 Ms Budd has a disability within the meaning of that term in the AD Act. She says that the refusal of Inspector O’Reilly to serve a summons on her neighbour is a breach of s 49M(1) of the Anti-Discrimination Act 1977. That provision states that:

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.

9 As no summons was ever issued, NSW Police were not in breach of s 49M(1) of the AD Act for failing to serve it.

Use of facsimile and phone

10 The second part of Ms Budd’s complaint is that Inspector O’Reilly prevented her from sending facsimile transmissions to the Maroubra Police Station. It is not clear from the material before me whether Inspector O’Reilly actually prevented her from doing so or merely threatened that he would take such action. Ms Budd also said that Inspector O’Reilly threatened that he would “cut my phone off”. In a letter dated 9 August 2006, Inspector O’Reilly wrote to Ms Budd saying, in part, that:

I am requesting that you no longer send facsimiles to this Command. On a number of occasions you have disabled our facsimile machine by sending voluminous and irrelevant documents which have caused significant disruption to the Command. Additionally your facsimiles have been very difficult to interpret and have been misleading on occasion. Due to the time previously expended trying to interpret your facsimiles, I consider that it is in the public interest to advise you that no further facsimiles will be accepted from you.

I have considered your psychiatric conditions, as described by you in telephone conversations and would like you to clearly understand that I am in no way denying you access to policing services. Should you wish to communicate with police, Maroubra Police Station can be contacted on 93499299 or in the case of an emergency, I would advise that you call the ‘000’ emergency number for assistance.

11 The AD Act defines “services” to include services provided by a public authority, such as NSW Police. The Police Act1990 provides that one of the functions of NSW Police is to "provide police services for New South Wales": s 6(2)(a). "Police services" are defined in s 6(3)(a) and (b) of the Police Act to include "(a) services by way of prevention and detection of crime and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way ..."

12 Unrestricted access to send documents by facsimile or to communicate without any limitation by phone, is not a “service” by way of prevention and detection of crime or the protection of persons from injury or death.

Order

13 Leave is refused.