Commissioner of Police, NSW Police Force v Butcher
[2011] NSWADTAP 9
•17 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Commissioner of Police, NSW Police Force v Butcher (EOD) [2011] NSWADTAP 9 Hearing dates: 1 and 15 October 2010 Decision date: 17 March 2011 Before: Magistrate N Hennessy, Deputy President
S Rice, Judicial Member
M Bolt, Non-Judicial MemberDecision: 1. The Tribunal's decision is set aside.
2. The matter is remitted to a differently constituted Tribunal to be heard and determined again in accordance with these reasons.
3. The respondent's application for costs is refused.
4. The matter is listed for case conference on 13 April 2011 at 10.30am.
Catchwords: APPEAL - disability discrimination in employment - period of the complaint - whether events or circumstances outside the complaint period can be taken into account Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54
Wollongong City Council v Bonella [2002] NSWADTAP 26
MacDonald v Puplick [1998] NSWSC 428
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR
Lavery v Commissioner of Fire Brigades [2003] NSWADT
Rowe v Australian Steam Navigation Co Ltd (1909) 9 CLR 1
Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2008] NSWCA 206
Hoecheong Products Ltd v Cargill Ltd [1995] 1 WLR 404
Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 294; 14 VR 207
McGovern v Ku-ring-gai Council [2008] NSWCA 209
Re JRL; Ex parte
CJL (1986) 161 CLR 342Category: Principal judgment Parties: Commissioner of Police, NSW Police Force (Appellant)
Mark Butcher (Respondent)Representation: Counsel
A Moses SC (Appellant)
D Mahendra (Appellant)
A Naylor (Respondent)
Sparke Helmore Lawyers (Appellant)
Oates & Smith Solicitors (Respondent)
File Number(s): 109046 Decision under appeal
- Citation:
- [2010] NSWADT 169
- Date of Decision:
- 2010-07-07 00:00:00
- Before:
- Equal Opportunity Division
- File Number(s):
- 109046
REASONS FOR DECISION
Introduction
Mr Butcher, a Police Officer, has diabetes mellitus which is often referred to as 'type 1' or 'insulin dependent' diabetes. His employer, the Commissioner of Police, NSW Police Force ('NSW Police'), has appealed against a decision of the Tribunal which found that NSW Police had discriminated against Mr Butcher on the ground of his disability in breach of the Anti-Discrimination Act 1977 (AD Act).
NSW Police is entitled to appeal on a question of law but must obtain the Appeal Panel's leave before appealing against the merits of the Tribunal's decisions: Administrative Decisions Tribunal Act 1997 (ADT Act) s 113.
During the appeal hearing the Appeal Panel raised a question of law which had not been identified by either party. That question was whether the Tribunal had erred by relying on evidence of events and circumstances which took place or existed outside the period of the complaint when making its findings of unlawful discrimination.
NSW Police applied to amend its Notice of Appeal to include the following:
1. The Tribunal erred by relying on evidence of events that occurred outside of the time period of the complaint (namely 30 May 2006 to 23 November 2007) to find that NSW Police unlawfully discriminated against Mr Butcher.
2. The Tribunal erred by relying on evidence of events that occurred outside of the time period of the complaint (namely 30 May 2006 to 23 November 2007) to reject NSW Police's defence pursuant to section 54 of the AD Act.
Mr Butcher opposed the application for amendment on several grounds which we will address later in these reasons. Firstly we will address the question of whether the Tribunal has made the error identified in the proposed Amended Notice of Appeal.
The complaint and the period covered
Mr Butcher was sworn in as a Police Officer with the rank of Probationary Constable on 16 December 2004 and was eligible for appointment as a Constable towards the end of December 2005. He was not appointed to that rank and was placed on restricted duties following a hypoglycaemic event on 17 January 2006. At the end of the following year, 2007, Mr Butcher was still on restricted duties and had not been appointed as a Constable.
On 23 November 2007 Mr Butcher lodged a complaint with the President of the Anti-Discrimination Board (the President). He alleged that he had been discriminated against on 30 May 2006 when his treating doctor, Dr Chalkley, expressed the view that he was fit to resume normal police duties. He said that the discriminatory treatment continued until 23 November 2007, the date he lodged his complaint.
Although the President has power to decline a complaint or part of a complaint if the alleged conduct occurred more than 12 months before the making of the complaint, the President did not decline any part of Mr Butcher's complaint: AD Act, s 89B(2)(b). Following investigation, the President referred the complaint, covering the period from 30 May 2006 to 23 November 2007, to the Tribunal for an original decision: AD Act, s 95(1) and (3); ADT Act, s 37.
The period covered by the complaint (the 'complaint period') is, therefore, 30 May 2006 to 23 November 2007, and the Tribunal had jurisdiction to determine whether conduct that occurred or was continuing during that period is in breach of the AD Act.
Tribunal's consideration of events and circumstances outside the complaint period
At a number of stages in its reasoning, from identifying the conduct complained of through to considering a statutory defence and making orders, the Tribunal took account of matters outside the complaint period. The Tribunal has not necessarily made an error of any kind by relying on evidence of events or circumstances that occurred outside the complaint period. Such evidence may be logically probative of an issue in dispute: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 66-67 and ADT Act, s 73(2). Whether evidence is logically probative will depend on its reliability and its relevance to an issue in dispute. As Diplock LJ said in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, a tribunal:
. . . may take into account any material which, as a matter of reason, has some probative value. . . If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom the Parliament has entrusted the responsibility of deciding the issue.
Conduct identified by the Tribunal as being the subject of the complaint
The question for the Tribunal was whether NSW Police had discriminated against Mr Butcher during the complaint period in the terms and conditions of his employment or by denying him access to opportunities for promotion or any other benefit associated with employment: AD Act, s 49D(2)(a) and (b).
The Tribunal's power is limited to determining whether specified conduct that occurred in or was continuing during the complaint period is in breach of the AD Act: Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 at [10]. Despite the fact that the complaint period commenced on 30 May 2006, Mr Butcher submitted to the Tribunal at first instance that there were six occasions when NSW Police had breached the AD Act, three of which preceded the complaint period. The Tribunal set out those occasions at [126]:
a) on or about 25 December, 2005, when NSW Police failed to confirm the applicant's rank as Constable of the New South Wales Police Force;
b) on and from the 19th January, 2006, when NSW Police placed the applicant on restricted duties;
c) on and from 31st January, 2006, when NSW Police maintained the applicant on restricted duties despite his improved control of his blood sugar levels;
d) on and from 30th May, 2006, when NSW Police refused to return the applicant to general duties despite the certificate from Dr Chalkley;
e) on and from about 29th August, 2006, when NSW Police refused to return the applicant to general duties in an operational role, despite a certificate from Dr Chalkley; and
f) on and from 17th February, 2007, when NSW Police refused to return the applicant to general duties in an operation role despite a certificate from Dr Chalkley.
The Tribunal noted at [127], that:
The applicant [Mr Butcher] submitted that the decision in Lavery v. Commissioner of Fire Brigades [2003] NSWADT 93 at [68] (sic) enabled the applicant to rely upon all of these issues despite that only issues (d) to (f) inclusive fell within the President's time period.
The Tribunal accepted Mr Butcher's submission. It found as fact, at [175], that continuing Mr Butcher as a Probationary Constable (occasion a)), and directing him to perform restricted rather than frontline police duties (occasions b) and c)), constituted denying him access to opportunities for promotion or some other benefit associated with employment. The Tribunal did not specify the time period within which this conduct occurred. At [187] the Tribunal set out the 'incidences' it found had occurred:
The placing of the applicant on restricted duties, followed by the failure to return him to frontline policing even after his compliance with the two sets of medical directives ... along with the failure to confirm him as constable ...
The Tribunal did not specify the dates of these acts or the periods of time they covered. It is clear that the Tribunal did not limit its findings to the complaint period because, for example, it decided at [197] that 'no unlawful discrimination took place in the decision in early 2006 with the decision to place Mr Butcher on restricted duties'.
Tribunal's error in identifying conduct
The Tribunal's power was limited to making findings that the AD Act had been breached in relation to conduct that took place or was continuing during the complaint period. The Tribunal appears to have misunderstood the nature of a 'continuing contravention' and the discussion of it in Lavery v. Commissioner of Fire Brigades [2003] NSWADT 93 at [64]. The Tribunal in Lavery referred to the reasoning in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [86] to identify a 'continuing contravention' of the Act, when a discriminatory state of affairs in the complaint period has its genesis in conduct which took place before the complaint period.
An applicant is able to argue that the conduct about which he or she complains commenced at some date prior to the commencement of the complaint period, but the Tribunal's jurisdiction is limited to ascertaining whether there has been a continuing contravention of the Act during the period of the complaint. The Tribunal does not have jurisdiction in relation to conduct that takes place outside the complaint period unless the President or the Tribunal amends the complaint to include that further conduct: AD Act, s 91C and s 103 and MacDonald v Puplick [1998] NSWSC 428; Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573. No such amendment was made in this case.
It was an error of law for the Tribunal to have made a finding that conduct that occurred outside the complaint period was lawful or unlawful. Neither party identified this error on the Appeal.
Tribunal's error in allowing evidence of causation
Having identified - erroneously in part - the conduct that was properly the subject of its inquiry, the Tribunal found at [176] to [189] that that conduct was less favourable than the treatment NSW Police afforded or would have afforded a person without Mr Butcher's disability in the same or similar circumstances: AD Act, s 49B(1)(a).
The next step for the Tribunal, a step we refer to as 'causation', was to determine whether a reason for that treatment was Mr Butcher's disability. NSW Police asserted that the reasons for its various decisions included that Mr Butcher was unable to manage his blood sugar at a safe level, fears that he may have future hypoglycaemic episodes, and concerns as to his insight and integrity arising from the way in which he reported various adverse health incidents.
The Tribunal found at [199] to [202] that the reason for NSW Police's treatment of Mr Butcher was his disability and not any inability to manage his condition or lack of insight into his condition. In the Tribunal's view the reason for Mr Butcher's treatment was the 'approach of Dr Kirby which was adopted by the Commissioner', an approach which, the Tribunal found, was prejudiced against Mr Butcher because of his disability. The Tribunal found at [202] that this conduct occurred on 31 July 2006, although it framed its order (a)(i) as remedying a failure to return Mr Butcher to unrestricted duties 'on or after 31 July 2006' without indicating an end point to that period.
In reaching this conclusion the Tribunal relied on the following evidence:
(a) Dr Chalkley's letter dated 30 May 2006;
(b) Dr Kirby's letter of 31 July 2006;
(c) Dr Chalkley's letter of 13 February 2007;
subsequent correspondence between Dr Chalkley and Dr Kirby in 2006 and 2007;
(d) Dr Kirby's oral evidence in particular his reluctance to accept that Mr Butcher had complied with the "under 8.0 for one year or close to that" requirement despite the facts;
the risk management assessment completed in October 2007; and
(e) Dr Kirby's lack of credibility and his questioning of Mr Butcher's integrity.
The evidence listed in e) above relates to circumstances or events which existed or occurred outside the period of the complaint. Counsel for NSW Police submitted that the Tribunal relied on that evidence to reach its view and it is arguable that, if the Tribunal had not relied on that evidence, it would have come to a different conclusion.
A reading of the Tribunal's decision at [198] to [202] reveals that the Tribunal considered that as at 31 July 2006, Dr Kirby's view of Mr Butcher's suitability for front line policing had 'hardened'. The Tribunal then relied on other evidence, including the evidence at (e) above, to support a finding that he now has (our emphasis) a 'firm view' that Mr Butcher, on the ground of his diabetes, is (our emphasis) unsuitable for frontline policing. The Tribunal then referred to evidence within the complaint period (the risk assessment and the questioning of Mr Butcher's integrity) to demonstrate the 'unwavering' nature of Dr Kirby's view and his bias against Mr Butcher. The Tribunal concluded that the approach of Dr Kirby which was adopted by the Commissioner, satisfied the definition of direct disability discrimination.
We agree with NSW Police that in making its findings as to causation, the Tribunal relied on evidence which occurred outside the period of the complaint. That evidence was relevant to the question of whether NSW Police was continuing to discriminate against Mr Butcher as at the date of the hearing. It was not relevant to whether NSW Police discriminated against Mr Butcher during the complaint period. It is not possible to say whether, if the Tribunal had not relied on that evidence, and had confined itself to evidence within the complaint period, it would have found the complaint to have been substantiated.
Defence under s 54
After finding that NSW Police had discriminated against Mr Butcher, the Tribunal went on to consider the defence relied on by NSW Police under s 54 of the AD Act. That defence provides that an otherwise discriminatory act will be lawful where that act is necessary to comply with the requirement of any other Act.
NSW Police submitted that any act of discrimination was lawful because of requirements under the Occupational Health and Safety Act 2000 (OH & S Act). The onus was on NSW Police to prove that, during the period of the complaint, it was necessary for Mr Butcher to be on restricted duties to comply with a requirement of the OH & S Act: AD Act, s 104. NSW Police relied on Mr Butcher's alleged "lack of insight", lack of integrity and poor "diabetes management" to show that it was necessary to place him on restricted duties.
The Tribunal was not satisfied that the defence had been made out. In coming to that view, it assessed the evidence of risk that Mr Butcher, as an individual, would pose if he engaged in front line or operational police duties. At [215] to [219] the Tribunal found that Mr Butcher's awareness and control of his diabetes was such that any risk of an adverse event would be minimal. The Tribunal said:
215 In our view, bearing in mind the exhortations in Purvis and in Z v. the Commonwealth [1999] HCA 63; [1999] 200 CLR 177, for employers to consider their legal responsibilities to others, this too is subject to individual consideration of the particular circumstances. The respondent asserted that Mr Butcher's case differs from that of Vickers in important factual bases, including that "Dr Kirby has not expressed the view in respect of the Applicant that all type 1 diabetics should be excluded from employment with the NSW Police Force". While there were serving officers in the police force with type 1 diabetes, Dr Kirby's view (as expressed in the letter of 31 July 2006 quoted in paragraph 200 above) was that insulin dependence "generally" poses an unacceptable risk and that view was maintained, despite Mr Butcher meeting the requirements for HbA1c levels with no hypoglycaemic events, set by Dr Kirby himself. This implacable view was imported into the "risk management tool" which was prepared inter alia by Dr Kirby and informed his views as to the likelihood, and the level, of particular risks.
216 The respondent also viewed Mr Butcher's "lack of insight" and "diabetes management" as insufficient for him to serve as a police officer and giving rise to difficulties in complying with s 8 of the OH&S Act. In the Tribunal's view, the respondent must fail in its s 54 defence to the extent that it relies upon Mr Butcher's "lack of insight". He impressed the Tribunal as a person who, on the contrary, had thought a great deal about the management of his diabetes and the way it could impact upon his duties as a police officer. He was under the regular care of Dr Chalkley who, too, is well aware of the requirements for Mr Butcher in his chosen career. We are also of the view that it is not a sustainable argument that Mr Butcher's diabetes is "not well controlled" when faced with the past year's HbA1c results.
217 We are of the same view when it comes to the respondent's concerns about Mr Butcher telling the truth about aspects of his diabetes. This view of Mr Butcher as untruthful first seems to have raised its head in Dr Kirby's letter of 14 June 2006 in which he said that Mr Butcher had undertaken "premeditated actions in attempting to cover this up". Dr Kirby said he "believe[d] this case has integrity, as well as medical issues to sort out". This view seems to have trickled into the official view of Mr Butcher without, we can say, much justification.
218 Given that the Tribunal has found that the applicant was a witness of truth, and that in effect any medical issues have been "sorted out" by the maintenance of his HbA1c levels over the past year with no hypoglycaemic incidents, these defences are not made out.
219 Accordingly, the Tribunal does not consider that the risks pointed to by the respondent are such that it should have the benefit of the s 54 defence. The respondent is in a position to manage the risk by taking steps such as allowing the applicant to carry his glucometer, insulin and carbohydrates, and by educating those serving with Mr Butcher so that they have a level of understanding of the kind of problems which may arise should there be a hypoglycaemic incident. However, having said that, the Tribunal is satisfied that Mr Butcher's awareness and control of his diabetes is such that any risk of an adverse event would be minimal.
Tribunal's error in deciding the s54 defence
It is apparent from this part of the Tribunal's decision that the Tribunal took into account evidence of Mr Butcher's conduct in the period around and immediately before the hearing at the end of 2009 to conclude that his 'awareness and control of his diabetes is such that any risk of an adverse event would be minimal' (our emphasis). The relevant inquiry should have been Mr Butcher's awareness and control of his diabetes during the complaint period.
Dr Kirby was called by NSW Police to give evidence as to what was expected of Mr Butcher if he were to be placed on frontline duties. In his affidavit dated 22 July 2009 he expressed the following opinion:
... Mr Butcher needs to be able to demonstrate long term hypoglycaemic control with an HbA1c at 8.0 or close to this. A period of one year for this to occur is reasonable based on my judgement and the common use of one year for medical conditions as it goes through one complete seasonable (sic) cycle.
Dr Kirby's opinion was expressed in the present tense, and was directed not to what had been expected of Mr Butcher in the complaint period, but what was expected of him at the time of the hearing. In response to this evidence, Mr Butcher adduced evidence of several pathology reports showing his HbA1c levels at points in time from 7 November 2008 to 11 November 2009, times well after the complaint period. Each test result showed a score of less than 8.0. At [218] the Tribunal accepted this as evidence that 'any medical issues have been "sorted out" by the maintenance of his HbA1c levels over the past year with no hypoglycaemic incidents' (our emphasis).
The Tribunal squarely relied on Mr Butcher's fulfilment of the 'under 8.0 for 1 year' requirement as a basis for rejecting NSW Police's s 54 defence. By relying on evidence outside the complaint period, to make findings about discrimination both during and after that period, the Tribunal made an error of law. The Tribunal addressed circumstances and considered evidence relating to the defence up until the hearing date, rather than only during the 18 month period of the complaint.
In the course of his evidence in chief, Mr Butcher volunteered evidence of two events which took place after the complaint period: the 'SES incident' on 27 September 2008 and the 'Campbelltown Hospital incident' on 16 December 2008, each of which was an occasion when Mr Butcher felt unwell. Even though the evidence was about events outside the complaint period, NSW Police did not object to this evidence. In fact, NSW Police cross-examined Mr Butcher at length about the incidents, suggesting that they showed the lack of insight or awareness into his condition that NSW Police relied on for its s 54 defence. (For the same purpose, NSW Police cross-examined Mr Butcher about an event which had occurred within the complaint period, the so-called 'Gun Room incident').
NSW Police questioned Dr Chalkley and Dr Kirby about the SES incident and the Campbelltown Hospital incident, and relied on the evidence of those incidents both as evidence of Mr Butcher's inability to manage his blood sugar levels appropriately, and to attack Mr Butcher's credibility.
In the Appeal, counsel for Mr Butcher said that that evidence had not been adduced to support the complaint of discrimination, and emphasised in oral and written submissions that the incidents which occurred outside the complaint period were not relevant to the question of whether NSW Police had discriminated against Mr Butcher during the complaint period. Even though Mr Butcher did not lead or rely on the evidence for that purpose, the question is whether the Tribunal in fact used the evidence for that purpose.
We are satisfied that the Tribunal took into account the SES and Campbelltown Hospital incidents. There is no specific reference to Mr Butcher's response to the SES and Campbelltown Hospital incidents in the Tribunal's reasons at [215] to [219], but the submissions about insight and diabetes management related, at least in part, to these incidents. Those incidents were not relevant to the s 54 defence because they took place about a year after the end of the complaint period. By relying on evidence outside the complaint period in this manner, the Tribunal made an error of law.
Evidence of the 'under 8.0 for 1 year' requirement and the SES and Campbelltown Hospital incidents was not relevant to whether NSW Police had reason, in the complaint period, to doubt Mr Butcher's ability to manage his blood sugar levels appropriately. It is not possible to say whether, if the Tribunal had not relied on that evidence, and confined itself to the complaint period, it would have rejected NSW Police's s 54 defence.
Findings on credit
The Tribunal found at [87] that Mr Butcher was a witness of truth, despite attempts by NSW Police to characterise his responses to various 'adverse health incidents' as demonstrating that he lacked integrity. At [88(a)-(d)], the Tribunal made findings about these adverse health incidents, of which only the 'gun safe incident' occurred during the period of the complaint:
a) 17 January 2006 - this was clearly a hypoglycaemic event and one which is directly linked to the advice given to him by Dr Ying (whether that advice be found to be to keep blood sugars low, at a specific level, or even at under 10%). While Mr Butcher is not free of blame - he admitted that he should not have changed his insulin levels without discussing it with Dr Hofer and/or Dr Chalkley - he had been told that "to be a police officer" he had to have lower blood sugar levels and he tried to attain that. The Tribunal has reached the conclusion that Mr Butcher is now well aware of the risks of self-treatment and of changing his medication and it is our view that he is most unlikely to try that again.
b) 23 October 2007 - the "gun safe incident". The evidence regarding this is finely balanced, but given the fact that Mr Butcher's condition was not relieved by glucose treatment the Tribunal is of the view that this incident is more likely to have been caused by inhaling either carbon monoxide or chemicals from the residue on the guns.
c) 27 September 2008 - the SES incident. This appears to have been a hypoglycaemic event exacerbated by heat stroke and brought on by vomiting. The circumstances in which it occurred were unusual and Mr Butcher is of the view - which appears to be the most likely one - that he was suffering from both heat stroke and from low blood sugar. Dr Chalkley appears to support the role of heat stroke in this incident. Again, Mr Butcher appears very aware of the dangers to his blood sugar levels of vomiting and we were satisfied that his future glycaemic control will take this factor into account.
d) 16 December 2008 - The medical evidence is inconclusive about whether this was a hypoglycaemic event. Given that he was ill for some two weeks - not usually indicative of hypoglycaemia - it appears more likely that it was not.
Apart from the reference to these incidents at [87], the Tribunal did not mention them specifically except when summarising the evidence at [20]. The Tribunal made adverse findings about Dr Kirby's credit, saying he was a 'less impressive' witness than Mr Butcher and Dr Chalkley.
No error in findings on credit
As we noted above, it is not necessarily an error for the Tribunal to rely on evidence of events or circumstances that occurred outside the complaint period. Depending on its reliability and relevance, such evidence may be logically probative of an issue in dispute. In relation to findings of credibility, that evidence may be relevant and was relevant in this case. In our view that evidence was sufficiently probative on the issue of credibility to be taken into account, and the Tribunal made no error in that regard.
The Tribunal's orders
The Tribunal made the following orders:
The Tribunal:
a) Finds the complaint that the applicant has been discriminated against on the grounds of his disability, being diabetes, in contravention of s 49D(1)(a) and 49D(2)(b) substantiated in that:-
i) the respondent failed to return the applicant to unrestricted duties on or after 31 July 2006; and
ii) the respondent failed to give the applicant an opportunity to be considered for confirmation as Constable pursuant to reg 13 of the Police Regulations 2008 or alternatively reg 14 of the Police Regulations 2000;
b) Enjoins the respondent from continuing to extend the probation of the applicant given the factual findings of the Tribunal;
c) Orders the respondent to pay general damages to the applicant in the sum of $10,000;
d) Orders the respondent to pay damages to the applicant in a sum to be agreed or, failing agreement, to be argued before the Tribunal on a date to be fixed, such sum to reflect:-
i)loss of income arising out of loss of increments;
ii)loss of income arising out of the loss of the opportunity to undertake overtime, shift allowances, and other work related payments arising from normal policing duties;
iii)loss of superannuation benefits arising from the above losses;
iv)interest as and from 31 July 2006.
e) Directs the parties to agree on a timetable, or to provide the Tribunal with alternative timetables, as to submissions should they wish to argue the question of costs.
Tribunal's error in making Order (b)
Order b) assumes that NSW Police were continuing to discriminate against Mr Butcher as at the date of the hearing. The Tribunal had no jurisdiction to make such a finding. The complaint period ended on 23 November 2007 and any findings of discrimination (or orders based on such a finding) after that date were beyond the power of the Tribunal to make.
In light of this error, the parties to the appeal agreed that the Appeal Panel should set aside order (b) and substitute it for an order that NSW Police "be enjoined from continuing or repeating any conduct rendered unlawful by the AD Act or the regulations made thereunder." There is, however, no need to make that order, since we have decided that the Tribunal's decision should be set aside and remitted to the Tribunal.
NSW Police's application to amend its Notice of Appeal
After the Appeal Panel raised the issues discussed above in relation to the period of the complaint, NSW Police applied to amend its Notice of Appeal. Mr Butcher opposed the application for amendment. We have decided to allow the amendment because the errors the Tribunal has made are fundamental. For completeness, we address below each of Mr Butcher's objections to the appeal being amended.
Mr Butcher's objections can be summarised as follows:
(a) the proposed new grounds do not particularise the events which occurred outside the complaint period but given the manner in which the issue was argued orally before the Appeal Panel, those events should be confined to the SES incident and the Campbelltown Hospital incident;
(b) NSW Police did not object to the evidence outside the period of the complaint being tendered and chose to use that evidence to attack Mr Butcher's credibility and to support its reliance on the s 54 defence. A party on appeal is bound by the manner in which the proceedings were conducted at first instance;
(c) Mr Butcher did not rely on the SES incident or the Campbelltown Hospital incident to support his complaint of disability discrimination and these incidents were not specifically referred to by the Tribunal when determining whether NSW Police had discriminated against Mr Butcher or whether NSW Police had made out the defence under s 54.
Scope of 'events' covered by the proposed amendment
Mr Butcher submitted that, having regard to the manner in which NSW Police argued the issue orally before the Appeal Panel, the "events" referred to in the proposed amended Notice of Appeal refer to the SES incident and the Campbelltown Hospital Incident. Mr Butcher said that no suggestion was made during the hearing to the contrary, nor can NSW Police fairly argue that "events" should be construed more expansively.
Counsel for NSW Police submitted that he did point to other "events" when addressing the Appeal Panel on this issue. In particular, Counsel for NSW Police said that he referred to [200] of the Tribunal's decision which mentions Dr Kirby's reluctance to accept that Mr Butcher had complied with the "under 8.0 for one year" requirement and [215] to [218] where the Tribunal again referred to that requirement in the context of deciding whether a defence had been made out under s 54.
We accept that counsel for NSW Police did refer to [200] of the Tribunal's decision and that consequently Mr Butcher was on notice at the appeal hearing that the events and circumstances to which counsel for NSW Police was referring when addressing the Tribunal included the 'under 8.0 for one year' requirement.
Parties are bound by the manner in which proceedings conducted at first instance
In opposing NSW Police's application to amend its Notice of Appeal, counsel for Mr Butcher submitted that NSW Police was bound by the manner in which the proceedings were conducted at first instance: Rowe v Australian Steam Navigation Co Ltd (1909) 9 CLR 1 per Isaacs J at 24. In Ingot Capital Investments Pty Ltd & Ors v Macquarie Equity Capital Markets Ltd & Ors [2008] NSWCA 206 Ipp JA stated at [468] (Giles and Hodgson JJA agreeing): "It would not be fair and just to the Respondent to allow the Appellant to take a point on appeal regarding the admission of evidence where it did not object to the evidence being admitted at first instance and, indeed, made a calculated 'forensic decision to allow the evidence in." Counsel for Mr Butcher pointed out that the general prohibition on raising new points on appeal applies equally where it is the court rather than a party that introduces the issue: Hoecheong Products Ltd v Cargill Ltd [1995] 1 WLR 404 at 408-409; and that the court has a duty to ensure that the opposing party is not prejudiced by the fresh point being raised and that litigation is finalised.
Both parties agreed that Mr Butcher did not, in his case, rely on events occurring outside the period of the complaint to support a finding of unlawful discrimination. However, Mr Butcher submits that since NSW Police did not object to the post complaint evidence, and in fact relied on it to support its case, it could not now argue that it was an error for the Tribunal to have relied on that evidence. The response of NSW Police to that submission is that the new questions of law identified in the proposed amended appeal notice are not about the admission of evidence per se, but about Tribunal's own reliance on evidence which led it into jurisdictional error.
Relevance of jurisdictional error
A party may appeal to the Appeal Panel on "any question of law": ADT Act, s 113. The question does not have to have resulted in the Tribunal making a jurisdictional, as opposed to a non-jurisdictional, error. Nevertheless whether the Tribunal has made a jurisdictional error is relevant to the question of whether leave to amend the Notice of Appeal should be granted. If the error is a jurisdictional error, the case for allowing a late amendment to the grounds of appeal will be extremely strong. In Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 14 [163], the Court said:
There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks the power to do. By contrast, incorrectly deciding something which the decisions maker is authorised to decide is an error within jurisdiction (This is sometimes describes as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
Was the error a jurisdictional error?
NSW Police submitted that the Tribunal's reliance on evidence of events that occurred outside the period of the complaint constituted a jurisdictional error because it exceeded the terms of the complaint referred by the President and therefore exceeded the jurisdiction conferred upon the Tribunal. The jurisdictional errors which NSW Police said the Tribunal had made were:
a) relying on evidence of events occurring outside the complaint period to make findings of unlawful discrimination against NSW Police and rejecting the section s 54 defence;
b) using the evidence for another purpose than the one for which it was admitted without notifying the parties of its intention to do so and without giving the parties an opportunity to make submissions in that respect: Sydney Ferries Corporation v Morton [2010] NSWCA 156 per Allsop P, Campbell JA agreeing at [12] and [115];
Relying on evidence of events outside the complaint period
Our understanding of the first point is that the Tribunal relied on evidence of events and circumstances that took place up until the date of the hearing, nearly 3 years after the complaint period, (1) to make findings that NSW Police discriminated against Mr Butcher and (2) to make findings that the s 54 defence had not been made out. We have examined these issues above and have found that the Tribunal did rely on evidence of events occurring outside the complaint period to make findings of unlawful discrimination against NSW Police and rejecting the section s 54 defence.
Using the evidence for another purpose
Our understanding of the second point is that the Tribunal made a jurisdictional error because it used evidence for a purpose other than the one for which it was admitted without notifying the parties of its intention to do so.
Evidence of the 'under 8.0 for one year' requirement was adduced by NSW Police through Dr Kirby at the hearing. Mr Butcher obtained and led evidence in response to the requirement. The Tribunal found at [90] that Dr Kirby, by saying in his oral evidence that Mr Butcher would be suitable for appointment as Constable if he maintained a certain level of insulin for a year, was open to complying insulin-dependent diabetics being employed in front line duties.
NSW Police adduced evidence of Dr Kirby's state of mind as at the date of he hearing. We are not persuaded that the Tribunal used that evidence for a purpose other than the one for which it was adduced. However, we agree with NSW Police that the Tribunal made a jurisdictional error by determining that events that occurred outside the complaint period were lawful or unlawful and by relying on evidence outside the complaint period to make findings (apart from findings relation to credit).
Summary of conclusions
Leave is granted for NSW Police to amend its Notice of Appeal. The Tribunal's decision should be set aside and the matter remitted to the Tribunal. Our reasons can be summarised as follows.
The period of the complaint as referred by the President of the Anti-Discrimination Board was from 30 May 2006 to 23 November 2007. The Tribunal's power is limited to determining whether specified conduct that occurred or was continuing during the complaint period is in breach of the AD Act. A complaint cannot continue after the end of the complaint period, unless the President or the Tribunal amends the complaint to include additional complaints. No such amendments were made.
Although the Tribunal mentioned in the decision at [4] that the complaint period 'ended' on 30 November 2007, it did not refer to that date again. The Tribunal made a jurisdictional error of law by dealing with the complaint period as if it continued until the date of the hearing and by making findings and orders which were consistent with that assumption. The elements of the decision which support that conclusion are as follows:
a) the Tribunal relied on evidence relating to the 'under 8.0 for one year' requirement to find that NSW Police had discriminated against Mr Butcher on the ground of his disability (and that NSW Police had not made out a defence under s 54) when that evidence could only have been relevant to those matters after the end of the complaint period;
b) the Tribunal relied on evidence relating to the SES incident and the Campbelltown Hospital incidents to reject NSW Police's defence under s 54 of the Act when those incidents could only have been relevant to that matter after the end of the complaint period;
c) the Tribunal made order (b) enjoining NSW Police from "continuing to extend the probation of the applicant" suggesting that the Tribunal had found (or at least assumed) that the discrimination was continuing up to the date of the hearing; and
d) the Tribunal made order (a)(i) finding that NSW Police failed to return Mr Butcher to unrestricted duties on or after 31 July 2006 but did not mention an end date.
Terms of remittal
Legislative framework
When, as in this case, an appeal is restricted to questions of law, the Appeal Panel's powers are governed by s 114 of the ADT Act:
If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.
When remitting a matter, the Appeal Panel may make directions in relation to how the Tribunal re-hearing the matter should be constituted and whether the matter should be re-heard with or without the hearing of further evidence.
Constitution of Tribunal
Although s 114(2)(b) empowers the Appeal Panel to remit a matter to the Tribunal "as originally or similarly constituted", the parties at the appeal hearing agreed that because the Appeal Panel "may make such orders as it thinks appropriate in light of its decision", we have a discretion to order that the Tribunal be differently constituted.
Counsel for Mr Butcher submitted that the Appeal Panel should not remit the matter to a differently constituted Tribunal unless satisfied of the test for reasonable apprehension of bias by prejudgment. That test is whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [15] to [23] per Spigelman CJ (Campbell JA agreeing). Counsel for Mr Butcher contrasted that test with the more traditional prejudgment test for reasonable apprehension of bias which is whether a fair-minded lay observer might reasonably apprehend that decision maker might not bring an impartial mind to the exercise of power: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351 per Mason J.
Counsel for NSW Police submitted that because the Tribunal had made unfavourable findings in respect of Dr Kirby's evidence, the matter should be remitted to a differently constituted Tribunal. Those findings included that:
a) Dr Kirby was a "less impressive witness" (at [90]);
b) Dr Kirby's comment in a letter of 31 July 2006 represented a 'hardening of his view to the point where Mr Butcher, on the ground of his insulin dependence, was unsuitable for frontline police duties' (at [199]);
c) NSW Police had discriminated against Mr Butcher relying on evidence outside the period of the complaint to justify that finding [200] to [202]; and
d) Dr Kirby's adverse view of Mr Butcher's integrity had "trickled into the official view of Mr Butcher without . . much justification." (at [217]).
Those findings were said by NSW Police to constitute, among other things, strong findings about Dr Kirby's credibility: Smith v New South Wales Bar Association (1992) 176 CLR 256 at 269.
Counsel for Mr Butcher pointed out that in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 294; 14 VR 207, the Victorian Court of Appeal remitted a matter to the Victorian Civil and Administrative Tribunal with a direction that the Tribunal be differently constituted in circumstances where the original Tribunal had found that the principal defence witness was "not a credible witness".
Conclusion
In view of the Tribunal's adverse findings as to Dr Kirby's credit, we are satisfied that an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion on that issue. The matter should be remitted to a differently constituted Tribunal.
Directions in relation to evidence
Given that the Tribunal re-hearing the matter will be constituted differently, the evidence will need to be re-heard. That re-hearing may take place wholly or partly on the transcript or by hearing from some or all the witnesses again. That is a matter for the Tribunal to decide. In accordance with our reasons, the Tribunal should confine itself to a consideration of whether NSW Police has discriminated against Mr Butcher during the period of the complaint. Only evidence relevant to that issue should be relied upon.
Amendment of complaint
It was noted at the appeal hearing that if the matter is remitted to the Tribunal, that Tribunal will have power to amend the complaint in accordance with s 103(1) of the AD Act as the re-hearing would be a "proceeding relating to the complaint." The Appeal Panel does not have power to direct the Tribunal to amend or not amend the complaint. That is a matter for the Tribunal re-hearing the matter.
Reliance on other grounds of appeal
During the appeal hearing, NSW Police stated that if it was permitted to add the proposed new grounds of appeal, there would be no need for the Appeal Panel to decide any of the questions of law set out in its original Notice of Appeal. NSW Police submitted that the Tribunal's findings as to unlawful discrimination were so 'infected' by findings in relation to post complaint period events that the decision would have to be set aside and the complaint re-heard. In its written submissions, NSW Police said:
In the event that the Appeal Panel refuses to grant leave to the Appellant to amend its Notice of Appeal to include the proposed new grounds of appeal, the Appeal Panel will still need to consider the grounds of appeal in light of the written submissions previously filed and the oral submissions which have been made.
Because we have decided to grant leave to amend the Notice of Appeal, we understand that NSW Police therefore does not require us to address any of the other questions of law raised in its Notice of Appeal.
Costs
Mr Butcher applied for all or part of the costs of the appeal. The general rule is that each party should bear its own costs, but costs may be awarded if it is 'fair' to do so taking into account the specific matters listed in s 88(1A) of the ADT Act and any other matter that the Tribunal considers relevant.
Counsel for Mr Butcher submitted that if the Appeal Panel grants leave for NSW Police to amend its Notice of Appeal and upholds the appeal based on the new grounds, and on no other grounds, Mr Butcher should be awarded all, or a very significant part, of its costs. Counsel for Mr Butcher said he prepared for the hearing of the appeal on the basis of the issues identified in NSW Police's original Notice of Appeal. He submitted that as the appeal has been upheld on the basis of an issue raised for the first time by the Appeal Panel on 1 October 2010, NSW Police has largely failed in its appeal and Mr Butcher has been put to a great deal of expense unnecessarily. Counsel for Mr Butcher submitted that it is not fair that Mr Butcher should have to pay his costs when NSW Police did not initiate the question concerning the Tribunal's reliance on evidence outside the period of the complaint. NSW Police did not seek leave to add new grounds of appeal until the end of the second day of the hearing before the Appeal Panel.
NSW Police submitted that the application for costs is premature and that the question of costs should be dealt with at the conclusion of the proceedings. We do not agree with that submission. The Appeal Panel has heard the appeal and any application for costs in relation to the appeal should be determined by the Appeal Panel in these reasons.
NSW Police submitted in the alternative that costs should not be awarded because the Appeal Panel has not yet determined the merits of its other grounds of appeal and those grounds have not been disavowed. According to NSW Police, even if it had lost on every ground of appeal in the original Notice of Appeal, there would have been no basis for an award of costs in favour of Mr Butcher.
NSW Police also submitted that it was not until 13 September 2010 that Mr Butcher conceded that the order made by the Tribunal at [227](b) should be set aside. Prior to that date Mr Butcher had sought to enforce that order. On 20 September 2010, at the conclusion of a stay hearing, the order made was varied in terms proposed by Mr Butcher's previous counsel. On 13 September 2010, at a directions hearing, in response to an application by NSW Police to produce fresh evidence on appeal, the parties agreed to a further variation of the order, which was handed to the Appeal Panel on 15 October 2010.
Conclusion on costs
One factor which is relevant when determining whether to make an order for costs is the relative strengths of the claims made by each of the parties including whether a party has made a claim that has no tenable basis in fact or law: ADT Act, s 88(1A)(b). The Appeal Panel identified a question of law which was not identified in NSW Police's Notice of Appeal and decided that the Tribunal has made certain errors of law which require that its orders be set aside. In those circumstances, we have not considered NSW Police's original grounds of appeal. It follows that we have not made a determination as to whether any of those grounds lack merit.
As well as the merits of the grounds of appeal, the Appeal Panel is entitled to take into account "any other matter it considers relevant" when deciding whether to award costs: ADT Act, s 88(1A)(e). Counsel for Mr Butcher considers it relevant that his client was put to the unnecessary expense of responding to several grounds of appeal which the Appeal Panel did not ultimately need to consider. While that is unfortunate, NSW Police is not at fault. While NSW Police failed to identify the Tribunal's error in its original Notice of Appeal, it applied to amend that Notice once the Tribunal had identified the issue. NSW Police also behaved appropriately by not pressing its original grounds of appeal if the Appeal Panel found that the amended grounds constituted an error of law.
In all the circumstances, we are not satisfied that it is fair to award costs against NSW Police.
Orders
1. The Tribunal's decision is set aside.
2. The matter is remitted to a differently constituted Tribunal to be heard and determined again in accordance with these reasons.
3. The respondent's application for costs is refused.
4. The matter is listed for case conference on 13 April 2011 at 10.30am.
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
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Decision last updated: 06 June 2011
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