Ella v State of New South Wales (NSW Police)

[2005] NSWADT 145

Pending Appeal:

CITATION:	Ella and ors v State of New South Wales (NSW Police) [2005] NSWADT 145
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Timothy Ella Teresa Haines-Brown Latoya Brown Terrence Ella Kimberly Ella Max Harrison snr The estate of Anthony Harrison Ronald McLeod Beverly Johnson Ronald McLeod Jnr Lynette Johnson Margaret Johnson Audrey McLeod Lewis Ahoy Sharee Ahoy Stacy Ahoy Andrew Ahoy Lewis Ahoy Jnr Selina Brown Bardin Brown Haley Brown Joe Brown Jnr Kooncha Brown Carlene Harrison The estate of Edward Connelly Coral Harrison Steve Accaro Erin Harrison Martin Elaine Hanson RESPONDENT State of New South Wales (NSW Police)
FILE NUMBER:	041048
HEARING DATES:	21/02/2005-22/02/2005
SUBMISSIONS CLOSED:	02/22/2005
DATE OF DECISION:	06/29/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Bolt M - Non Judicial Member; Gill M - Non Judicial Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Felons (Civil Proceedings) Act 1981 Police Act 1990
CASES CITED:	Commissioner of Police v Orr [2001] NSWADTAP 16 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Mr and Mrs A on behalf of their four children -v- State of New South Wales and Department of Education and Training [2003] NSWADT 71 Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT Langley v Niland [1981] 2 NSWLR 104 Harding v Vice Chancellor, University of NSW (2003) NSWADT 74 IW v City of Perth (1997) 191 CLR 1 Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Crewdson v Niland [2002] NSWADTAP 5 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252 Holdaway v Qantas Airways Ltd (1992) EOC 92-430 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Tu v University of Sydney (No 2) [2002] NSWADTAP 25 Wilde v University of Sydney (No 2) [2004] NSWADT 16
REPRESENTATION:	APPLICANTS J Keyes, counsel RESPONDENT K Nomchong, counsel
ORDERS:	The complaints are dismissed. No order as to costs.

Introduction

1 From November 1995 to February 1996 there was an ongoing violent dispute between two Aboriginal family groups: the Harrison/McLeod family and the Campbell family. The Harrison/McLeod family group lived in an Aboriginal community on the south coast of New South Wales known as Wallaga Lake Koori Village (Wallaga Lake). Most members of the Campbell family lived at Bermagui on a property called “Foxhill”. The members of the Harrison/McLeod family allege that during this period members of the Campbell family threatened and assaulted many of them, barricaded the roadway with broken glass and 44 gallon drums containing fires, fire bombed their houses and cut their power supply. Members of both groups were assaulted leading to further retaliation. Police officers attended both Wallaga Lake and Foxhill on many occasions.

2 Several members of the Harrison/McLeod family complained to NSW Police about the inadequacy of their response during this time. On 4 March 1996 NSW Police implemented Operation Cosmic because of concerns relating to the escalation of violence at Wallaga Lake and the potential for a major armed confrontation to take place. The aim of the operation was to identify, arrest and charge those responsible for offences of violence and property damage in the Wallaga Lake and Bermagui areas. By early March 1996 the members of the Harrison/McLeod family who are the applicants in these proceedings, had left their houses at Wallaga Lake because of the continuing violence.

3 On 19 September 1997, several members of the Harrison/McLeod family complained to the President of the Anti-Discrimination Board that NSW Police had discriminated against them on the ground of their race from November 1995 to February 1996. It was not until over six years later, on 10 March 2004, that the President referred the complaint to the Tribunal. Prior to the complaint being made to the Anti-Discrimination Board, many of the same allegations were made to the NSW Ombudsman. The Ombudsman sought a response from NSW Police and advised the complainants of his findings in a report dated 23 January 1997.

4 These proceedings relate to an application by NSW Police for the complaints to be summarily dismissed under the former s 111 of the Anti-Discrimination Act 1977 (the Act). The Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 has since omitted that provision and replaced it with s 102. As these proceedings were heard prior to the commencement of the Amendment Act on 2 May 2005, the former s 111 is the relevant provision. Under that provision, the Tribunal may dismiss a complaint, at any stage of an inquiry, if it “is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained ...”

Application for summary dismissal

5 The Tribunal has considered the principles that apply to an application to dismiss a complaint under s 111 on numerous occasions. A useful summary of those principles is set out in Commissioner of Police v Orr [2001] NSWADTAP 16 at [34] to [36]. In brief, a complaint should only be summarily dismissed after exercising exceptional caution and giving the applicant every reasonable opportunity to set out the basis of the complaint and to tender the evidence that supports that complaint. The Tribunal is obliged to accept the applicants’ evidence at its highest before determining whether the complaints should be dismissed. The onus is on NSW Police to establish that the complaints should be dismissed. (Harding v Vice Chancellor, University of NSW (2003) NSWADT 74 at [24].)

6 In State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109, Ormiston JA defined “misconceived” to mean a “misunderstanding of legal principle” and “lacking in substance” to mean “an untenable proposition of law or fact”. The phrase “for any other reason” is not limited in any way by the preceding reasons for dismissal and can relate to matters such as the failure to diligently prosecute a complaint. (Mr and Mrs A on behalf of their four children -v- State of New South Wales and Department of Education and Training [2003] NSWADT 71 at [6]; Walsh and Gabell v Australian Postal Corporation [1997] NSWEOT; Langley v Niland [1981] 2 NSWLR 104 at 107.)

7 NSW Police submitted that the complaints were misconceived because they relied on a ground of discrimination (a combination of Aboriginality and residence in an Aboriginal community) that is not a ground under the Act. Another alleged misconception on the part of the applicants was that the appropriate comparator was an Aboriginal person who did not live in an Aboriginal community such as Wallaga Lake, rather than a non-Aboriginal person. According to NSW Police, the complaints are lacking in substance because the evidence does not support the alleged breaches of the Act. NSW Police also submitted that the complaints should also be dismissed for “any other reason” namely that the applicants failed to properly particularise their complaints and failed to diligently prosecute the complaints. Finally NSW Police said the complaint should be dismissed because it is prejudiced because of the time that has transpired between the events and the hearing.

8 Before considering this application, there are several preliminary issues that need to be determined. They are:

- the identification of the applicants;

- the scope of the evidence;

- whether NSW Police is providing a “service” to the applicants within the meaning of that term in s 19 of the Act; and

- the meaning of race discrimination.

9 “Applicants” who did not lodge complaints. The President’s Report referred a complaint to the Tribunal from Timothy Ella and 28 other named individuals. On 29 April 2003, Ms Calita Murray, who was a spokesperson for the complainants, wrote to the President to tell him that five more people wished to be added as complainants. Those people were Max Harrison Snr, Margaret Haines-Brown, Robert (Joe) Brown, Victor McLeod and Keiren McLeod. Both Keiren McLeod and Max Harrison Snr wrote to the President on 27 April 2003 confirming that they wished to be added as complainants. There is no correspondence in the attachments to the President’s Report from Margaret Haines-Brown, Robert (Joe) Brown or Victor McLeod requesting that they be added as complainants.

10 The former s 88 of the Act relevantly required that a complaint be made by a person on the person’s own behalf or by a person on the person’s own behalf and on behalf of another person or persons. Margaret Haines-Brown, Robert (Joe) Brown and Victor McLeod did not make complaints on their own behalf and no-one else who was a complainant made a complaint on their behalf. That means that they did not lodge complaints with the President of the Anti-Discrimination Board. The Tribunal’s jurisdiction is confined, by the former s 96 of the Act, to holding an inquiry into each complaint or matter referred to it. Because we do not have any evidence that Margaret Haines-Brown, Robert (Joe) Brown or Victor McLeod lodged complaints with the President and because the President did not refer a complaint from any of those people to the Tribunal, we have not treated them as applicants in these proceedings. No application has been made for any of those people to be joined as applicants.

11 Applicant in custody. Although the President did not specifically refer complaints from Keiren McLeod or Max Harrison Snr, we are satisfied that they both made complaints to the President and that the President’s failure to name those people as complainants was an oversight. There is a further complication in relation to Keiren McLeod. We understand that Mr McLeod is currently serving a term of imprisonment. Section 4 of the Felons (Civil Proceedings) Act 1981 states that:

A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

12 NSW Police submitted that Keiren McLeod is unable to bring civil proceedings in the absence of an application under s 4. The Points of Claim indicate that Mr McLeod is a complainant “subject to leave”. Ms Keyes, representing the applicants, did not apply for leave at the hearing and NSW Police did not have an opportunity to put their case, if any, in opposition to such an application. Had such an application been made, the Tribunal would have had to decide whether or not it is a “court” for the purposes of s 4 and whether Mr McLeod had been convicted of a serious indictable offence. There was no evidence as to when Mr McLeod was convicted or the nature of the offence, despite NSW Police having requested that information on 24 June 2005. We are unable to make a finding as to whether Mr McLeod’s circumstances require leave from the Tribunal under s 4 of the Felons (Civil Proceedings) Act 1981. As the note on the Points of Claim is based on an assumption that leave is required, and leave was not sought, we have not treated Mr McLeod as an applicant in these proceedings.

13 Applicants under 18 years. Several of the complainants were under 18 years of age when the complaints were lodged. The former s 88(2) of the Act required that a complaint could be lodged on behalf of a person under the age of 18 years but only if the President is satisfied that the child and the child’s parent or guardian, consented to the complaint being lodged. While there was no direct evidence of such consent, NSW Police did not raise compliance with the former s 88(2) as an issue and we accept that the Tribunal has jurisdiction to inquire into the complaints lodged by complainants who were under the age of 18 at the time. Those complainants are Latoya Brown, Terrence Ella, Kimberly Ella, Ronald McLeod Jnr, Margaret Johnson, Sharee Ahoy, Stacy Ahoy, Andre Ahoy, Lewis Ahoy Jnr, Bardin Brown, Haley Brown and Erin Harrison Martin. We note that Erin Harrison Martin is referred to in the President’s Report as Erin Accaro and that Andrew Ahoy is referred to in the President’s Report as Andrew McLeod. None of these applicants filed a statement.

14 Applicants who are deceased. Anthony Harrison and Edward Connelly are deceased. Both died after the complaint had been lodged with the Anti-Discrimination Board on 17 September 1997. The former s 88A(1) of the Act provided for the situation where a complainant dies before his or her complaint is finally determined. In those circumstances the complaint survives and the estate of the complainant may continue the carriage of the complaint. In a letter to the President dated 7 May 2003, Calita Murray indicated that the estate of Anthony Harrison is being administered by his father, Max Harrison Snr and that the estate of Edward Connelly is being administered by his partner Carlene Harrison. Max Harrison’s unsigned statement says that he is responsible for administering his son’s estate. Although this evidence is not in proper form, we find that the estate of each of the complainants has continued the carriage of those complaints.

15 Applicants who did not file statements. Ms Keyes said in a preliminary conference held on 7 September 2004, and on subsequent occasions, that if no statement is filed by an applicant then that person is not to be regarded as an applicant. Despite those comments we are reluctant to disadvantage those applicants who did not file statements, but who have not formally withdrawn from the proceedings. The applicants who have not filed statements, either signed or unsigned, are Teresa Haines-Brown, Latoya Brown, Terrence Ella, Kimberly Ella, the estate of Anthony Harrison, Ronald McLeod, Sharee Ahoy, Stacy Ahoy, Andrew Ahoy, Lewis Ahoy Jnr, Selina Brown, Bardin Brown, Hayley Brown, Carlene Harrison, the estate of Edward Connelly, Coral Harrison Steve Accaro, Erin Harrison Martin and Elaine Hanson.

Scope of the evidence

16 We have confined Ms Keyes to the evidence filed and served by 20 December 2004. The background to that decision is set out below at [65]. Despite confining the applicants to the evidence filed by 20 December, we need to keep in mind that we are not bound by the rules of evidence and that exceptional caution must be exercised before summarily dismissing a complaint. In those circumstances, we have decided to have regard to all the applicants’ evidence and to accept that evidence at its highest, even if it is not in proper form. That includes the material in the President’s Report.

17 At the hearing, the Tribunal did not admit into evidence five unsigned and undated statements lodged on 20 December 2004. Those statements were from Timothy Ella, Max Harrison, Ronald McLeod, Joseph Brown and Victor McLeod. The evidence was not admitted because, at that time, the Tribunal accepted the submission from NSW Police that the applicants had been given ample time to file and serve signed and dated statements. Furthermore, Ms Keyes did not offer any evidence or explanation as to why the statements were not signed. On reflection, we have decided to accept those statements into evidence for the purpose of determining the summary dismissal application. We note that neither Joseph Brown nor Victor McLeod is an applicant, but they can nevertheless file statements as witnesses. NSW Police was not required to respond to that material and we are reluctant to disadvantage the applicants because of the failure of their counsel to lodge material in the proper form.

Legal basis for complaints and the definition of “service”

18 The crux of the applicants’ complaint was that during the period November 1995 to February 1996 Aboriginal people who were not residents of the Aboriginal community at Wallaga Lake were “the attackers” and that NSW Police treated the residents of Wallaga Lake less favourably than the non-residents. Although specific provisions of the Act were not mentioned, we understand from the Points of Claim that the applicants are alleging that NSW Police has discriminated against them contrary to s 19 of the Act. That provision provides that:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

19 In a substantive hearing, s 19 would require each applicant to establish that NSW Police has either refused services or provided services on unfavourable terms. NSW Police did not deny that they were providing “services” to the applicants under s 19 of the Act. Consequently neither party made submissions on the meaning of that term. Despite the absence of any submissions on this point, it is necessary to define the “services” in question in order to determine whether the applications are misconceived, lack substance or should be dismissed for any other reason. (See IW v City of Perth (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.) The definition of “services” in s 4 of the Act includes services provided by a public authority. In Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Sully J concluded that the Police Service (now NSW Police) is a public authority within the meaning of that term in s 4. His Honour referred to the functions of NSW Police which include providing “. . . police services for New South Wales.” “Police services” are defined in s 6(3)(a) and (b) of the Police Act 1990 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 . . .”

20 It is apparent from Sully J’s decision, that a police officer will be providing “services by way of prevention and detection of crime” to members of the public when investigating an allegation that a criminal offence has been committed or is about to be committed. The question in these proceedings, which was not answered directly by Sully J, is whether, when investigating a crime, police officers are providing services to the alleged victim or victims of a crime, or merely to the public at large. Gummow J commented on an analogous situation in IW v City of Perth (1997) 191 CLR 1 at 44, where the issue was whether the City of Perth unlawfully discriminated against an association by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus (HIV). His Honour said that:

There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.

21 In our view, individual police officers, when preventing and detecting crime, are providing a service to the community as a whole. The passage from IW v City of Perth quoted above suggests that they are also providing a service to the individual or individuals who ask them to perform those functions or who will be protected by the performance of those functions. Consequently, the services in this case can be defined as “services by way of prevention and detection of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . .” However, those services do not include a decision as to whether or not to charge a person with an offence. In Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343, the Supreme Court of Tasmania decided in the context of the Anti-Discrimination Act 1998 (Tas) that when the Director of Public Prosecutions conducts criminal prosecutions, he is not providing services to the victims of crimes. Similarly, when police are determining whether or not to charge a person with a crime, they cannot be said to be providing services to the victims or to the community at large.

Definition of race discrimination

22 The definition of race discrimination is set out in s 7. The applicants relied on “direct” discrimination under s 7(1)(a). Section 7(2), the “characteristics extension” is also potentially relevant.

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race 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 of a different race or who has such a relative or associate of a different race,

...

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

23 “Race” is defined in s 4 to include “colour, nationality, descent and ethnic, ethno-religious or national origin.” Aboriginality is a race. Under s 4A, if an act is done for 2 or more reasons, it is sufficient if one of those reasons constitutes unlawful discrimination even if it is not the dominant or a substantial reason for doing the act.

Failure to prosecute

24 NSW Police submitted that the applications should be summarily dismissed for “any other reason” namely a failure to diligently prosecute the claims. In Crewdson v Niland [2002] NSWADTAP 5 at [36], the Tribunal held that s 111(1) of the Act was broad enough to cover a situation where there had been “a failure to diligently prosecute a complaint.” The applicants’ failures to comply with the timetables set down by the Tribunal are detailed in the statement of Ms Saima Bangash, solicitor with the Crown Solicitor’s Office filed on 2 February 2005. That evidence demonstrates that despite the Tribunal’s original direction on the 20 April 2004, that the applicants file and serve their Points of Claim and evidence in support by 2 July 2004, it was not until 20 December 2004, following two revisions of the timetable, that the applicants filed and served their material. According to Ms Keyes, the applicants underestimated the amount of work involved in preparing the matter for hearing.

25 Ms Keyes suggested that the applicants had not been given every opportunity to put their case. When asked to identify what the Tribunal should have done, she pleaded for “leniency” and an appreciation of the difficulties involved in preparing the matter for hearing. Given the time that the applicants have already had to prepare their case and the fact that they are legally represented, their complaints must now stand or fall on the basis of the allegations and the evidence provided. The applicants have had ample time to particularise and provide evidence of their complaint. While the Tribunal is not a court of strict pleading, NSW Police can only respond to the allegations and the evidence that has been filed.

26 The lengthy time taken to file the material has resulted in a delay in the summary dismissal application being heard, but the applicants have not been given any further time to present their case. As the application has now been heard on the basis of the material filed by the applicants, there is no basis for dismissing the complaints for want of prosecution.

The ground of discrimination - race

27 No assertion that applicants are Aboriginal. The Points of Claim state that “the applicants are a family group and at all material times were residents of the Wallaga Lake Koori Village, an Aboriginal community owned and operated by the Merriman’s Land Council.” The Points of Claim also state that Steve Accaro is not Aboriginal. None of the statements filed by the applicants allege that they are Aboriginal. In her letter to the President dated 29 April 2003, Calita Murray stated that all the applicants, apart from Steve Accaro, are Aboriginal. While that is not the best evidence of their Aboriginality, and while it was a significant oversight on the part of the applicants’ representative not to state that they are Aboriginal, for the purposes of these proceedings we accept that all the applicants, apart from Steve Accaro, are Aboriginal. Mr Accaro is a relative or associate of an Aboriginal person. Consequently, under s 7(1)(a), he will have been discriminated against on the ground of race if NSW Police have discriminated against him on the ground of the race of one of his relatives or associates.

28 Aboriginality and residents of an Aboriginal community. In the Points of Claim the applicants allege that NSW Police unlawfully discriminated against them “on the ground of their Aboriginal race and their residence in an Aboriginal community (known as the Wallaga Lake Koori Village).” We assume that the reason for that characterisation was so that the conduct of NSW Police towards people living at Wallaga Lake could be compared with the conduct of NSW Police towards other Aboriginal people who did not live at Wallaga Lake, particularly the Campbells. When questioned by the Tribunal about the ground of discrimination, Ms Keyes, representing the applicants, agreed that it was not the applicants’ Aboriginality by itself that was the ground for discrimination but that factor together with their residence in an Aboriginal community. She said that their Aboriginality and their residence in an Aboriginal community were connected. As we understand Ms Keyes’ submission it was that because the applicants would not be residing in an Aboriginal community if they were not Aboriginal, their residence in that community is a ground of discrimination.

29 Characteristics extension. Ms Keyes’ submission appears to involve an assertion that the applicants were discriminated against on the ground of a characteristic that appertains generally to Aboriginal people, that is that they live in an Aboriginal community. Section 7(2) extends the ground of discrimination to cover a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. While there was no mention of discrimination on the ground of “characteristics” in the Points of Claim, the Tribunal raised that possibility in the course of the proceedings. Ms Keyes tentatively suggested that living in an Aboriginal community was a characteristic “that is generally imputed to” Aboriginal people and that NSW Police discriminated against the applicants on that basis. We are not satisfied that living in an Aboriginal community is a characteristic that is generally imputed to Aboriginal people. There was no evidence to support such an assertion and it is not something about which we can take judicial notice.

30 Traditional way of resolving disputes. Ms Keyes’ alternative submission was that it is a characteristic “that is generally imputed to” Aboriginal people that they have a traditional way of resolving disputes. That submission was made in the context of an allegation that police officers allowed the warring parties to engage in one to one fist fights in an attempt to resolve the dispute. According to Ms Keyes, that conduct would not have amounted to discrimination if the traditional methods had resolved the dispute but since they had not, the willingness of police officers to allow the dispute to be dealt with in that way amounted to discrimination. That assertion cannot be correct. The lawfulness or otherwise of conduct under the Act does not depend on the outcome of that conduct. In any case, we are not satisfied that resolving disputes in a traditional way is a characteristic that is generally imputed to Aboriginal people. There was no evidence supporting that assertion and it is not something about which we can take judicial notice.

31 Other possible grounds. According to Professor Cairns, “If the Tribunal can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated.” (Professor Bernard Cairns has said in Australian Civil Procedure, 4th ed, Sydney: LBC Information Services, 1996 at page 242.) One possibility is that Aboriginality was merely one of the reasons for the conduct of NSW Police. Section 4A states that if an act is done for two or more reasons and one of the reasons is a ground of discrimination under the Act, then the act is taken to be done for that reason. Consequently, as long as Aboriginality is one of the reasons for the conduct, even if it is not the dominant or a substantial reason, then the alleged conduct may be unlawful.

32 Conclusion. The applicants’ reliance on Aboriginality in combination with residence in an Aboriginal community as the ground of discrimination is misconceived. An alternative is that at least one of the reasons for the conduct was the applicants’ Aboriginality or, in the case of the non-Aboriginal applicant, the Aboriginality of his relative or associate. As the conduct was not based on a characteristic that appertains generally to Aboriginal people or on a characteristic that is generally imputed to Aboriginal people, s 7(2) does not apply. Consequently we have construed the complaints to be on the ground of the applicants’ Aboriginality or, in the case of Mr Accaro, on the ground of the Aboriginality of his relative or associate.

The comparator

33 Section 7 requires that the treatment afforded to the applicants be compared with the treatment that was or would be afforded to people who are not Aboriginal in the same circumstances, or in circumstances which are not materially different. In the case of the non-Aboriginal applicant, the comparison is with a real or hypothetical person who does not have a relative or associate who is an Aboriginal person. Only two of the actual comparators put forward by Ms Keyes were non-Aboriginal. These were:

- people living in the Bateman’s Bay and Narooma areas in relation to the implementation of a special operation from 14-17 December 1995 to address numerous offences of steal from motor vehicle; and

- people living in a non-Aboriginal community, that is they would not have supported the elders of a non-Aboriginal community in resolving a dispute in a “traditional” way.

34 There was no evidence of the treatment NSW Police afforded to non-Aboriginal people in the Bateman’s Bay and Narooma areas in December 1995 as a response to motor vehicle offences. In relation to the second dot point, the difficulty with Ms Keyes’ analysis of the incident where NSW Police allegedly allowed the warring parties to engage in one to one fist fights in an attempt to resolve the dispute, has been highlighted in [30] above. In any case Ms Keyes did not identify the circumstances that would be the same, or not materially different, when making any of these comparisons. In the absence of any actual comparator, the Tribunal can only assume that the applicants’ case is based on a comparison with the way NSW Police would have treated a hypothetical non-Aboriginal person or people in the same circumstances, or in circumstances which are not materially different.

Causation

35 NSW Police submitted that the complaints are misconceived or lacking in substance because the applicants have failed to provide evidence that one of the reasons for the way NSW Police treated the applicants was their Aboriginality.

Less favourable treatment

36 In their Points of Claim, the applicants alleged that the following treatment by NSW Police constituted race discrimination:

a) The NSW Police response to calls for assistance from the Aboriginal community at Wallaga Lake was slow.

b) The NSW Police took two to three weeks to charge offenders for the assault of Margaret Brown, and only after representations from a relative of the applicants who was a non-resident of Wallaga Lake Koori Village.

c) The NSW Police did not talk to the applicants whose cars and homes were destroyed.

d) The NSW Police did not charge any person/s responsible for damaging the water supply at the Aboriginal community at Wallaga and attempting to cut down a power pole carrying power to that community.

e) The NSW Police failed to make arrests following the destruction and burning of a house occupied by Timothy Ella, Teresa Haines-Brown, Latoya Brown, Terrence Ella and Kimberly Ella on 10 December 1995 and 11 December 1995.

f) The failure of the NSW Police to respond quickly in arresting an offender(s) in the assault against Margaret Brown as per (b) above, contributed to the subsequent violence at the Aboriginal community.

g) The NSW Police failed to secure crime scenes and evidence.

h) The NSW Police failed to provide an opportunity appropriate to the circumstances for the interview and assistance of the Applicants.

i) The NSW Police failed to obtain protection orders including orders prohibiting the alleged attackers from approaching (etc) the Applicants and requiring the alleged attackers to surrender their firearms and other weapons.

j) The NSW Police failed to provide adequate protection to the Applicants and their community.

k) The NSW Police relied on mediation – and on 10 December 1995 allowed one-on-one fist fights to occur – to resolve the situations at Wallaga Lake Koori Village without regard to the level and continuation of violence involved in the attacks.

l) The NSW Police failed to provide adequate law enforcement at the Aboriginal community at Wallaga Lake during the period from November 1995 until February 1996; the NSW Police failed to provide an adequate response to the violent situation at the Aboriginal community at Wallaga Lake until commencing Operation “Cosmic” in March 1996.

37 The Tribunal’s first task is to determine whether these allegations constitute the refusal of a service, or the provision of a service on unfavourable terms. The allegation at (f) is not an allegation that services were refused or provided on less favourable terms but an assertion as to the damage allegedly caused by the conduct outlined in (b) above. The allegation at (l) is a summary of the previous allegations. Given our conclusions about the scope of the “services” provided by police, any allegation about the failure to charge a person with an offence (as distinct from a delay in investigating an incident) does not come within the definition of a “service”. That finding affects the allegations in (d) and (e) above.

Evidence in support of allegations

38 NSW Police submitted that there was insufficient evidence to support the remainder of the allegations and that they should be dismissed as lacking in substance. Ms Keyes submitted that the Tribunal should not dismiss the complaints, saying that the applicants were “very keen for the matters to proceed” and that it would be a “travesty” if they were unable to prosecute their complaints after all the effort they had put in. Ms Keyes asked the Tribunal to recognise that preparation of the matter for hearing had been a difficult process. We have taken into account all the documentary material filed by the applicants. Without being exhaustive, the significant aspects of that evidence are discussed below.

39 Slow response to calls for assistance. The main evidence of slow response times appears to relate to the evening of 11 December and the morning of 12 December 1995. Attached to the complainants’ complaint to the President is a letter from Vicki Grieves, then an officer from the Ombudsman’s Office, dated 8 November 1996. She says in that letter that:

“Prior to 10 pm I had a phone call from Mr Joe Brown Jnr at Wallaga Lake Koori Village. He said that he had heard that “the Campbells” were drinking at the hotel in Bermagui and were saying that they were going to attack the homes at Wallaga Lake later that night. I asked him if he had called the police and he said that they had been called earlier but no-one had arrived. I then called the police and persisted with them until I could get someone to call me back. A policeman called back and said that an elder had been into the station earlier that evening . . and had told them that all is quiet out there and there is nothing to worry about. I said that yes it may be quiet there at the moment but they have word that the houses are going to be attacked that night, when the pub closes... At 2 am approximately Joe Brown called me back to tell me that the Campbells had arrived and were attacking the people there and I rang the police again... I got through to them, impressed upon them the urgency of the situation, and was reassured that they were going to visit the Village.”

40 It seems that Ms Grieves wrote this letter in her capacity as a private citizen and not as a representative of the Ombudsman’s Office. There are other allegations by applicants that they telephoned police. Dates and approximate times are provided in some cases.

41 Time taken to charge offenders for the assault of Margaret Brown. Ms Brown is not an applicant in these proceedings but her statement has been admitted into evidence. She says she was assaulted on 15 November 1995. On 27 November, after spending time in hospital she gave a statement to police. She does not mention anything in her statement about police failing to charge her alleged assailant. Tim Ella gave evidence that on 16 November 1995 he went to Narooma police station but Sergeant Moore said to him, ‘Go home, you cannot make a statement. Margaret is the one who must make the statement.’ Mr Ella then says that he told Sergeant Moore that he had been assaulted and asked him why he was not able to make a statement. He says Sergeant Moore said ‘Shut your mouth and go back to Wallaga Lake.’ Audrey McLeod gave evidence that it was her understanding that members of her family made various calls for police assistance on 15 November but she was not approached by a police officer that day about what had happened. Lewis Ahoy gave a statement to police on 19 November 1995 stating that he saw Marilyn Campbell hit Margaret Brown with a wooden object on 15 November 1995. He went to the police station that day and says that no-one came to see him or asked him what happened. Kooncha Brown gave evidence that he went to the Narooma Police Station on 20 November and made a statement about what had happened on the night of 15 November.

42 NSW Police did not talk to the applicants whose cars and homes were destroyed. Max Harrison gave evidence that his “station sedan and ute” were destroyed by the Campbells. In relation to the applicants’ homes being destroyed, there was an allegation in the Points of Claim that on 12 December 1995, the “attackers” caused damage to houses occupied by Audrey McLeod, Lewis Ahoy, Stacy Ahoy and Andrew Ahoy and by Timothy Ella, Teresa Haines-Brown, Latoya Brown, Terrence Ella and Kimberly Ella. In his statement Lewis Ahoy said that “The police were called, but only one police officer turned up after day break, later that morning.” Mr Ahoy says Sergeant Moore took some evidence with him but did not ask Mr Ahoy to make a statement. The statement of Audrey McLeod does not mention whether police spoke to her about the fire bombing of the house. Beverly Johnson gave evidence that police arrived at about 8 am on the morning following the fire-bombing of the house. Although she was not an eye- witness to the events she says that the police did not speak to her about what had happened. Annexure M to Calita Murray’s affidavit of 20 December 1996 is a report from Sergeant Moore which states, at paragraph 4, that Desmond Campbell was arrested and charged with the fire bombing of Audrey McLeod’s house on 12 December 1995, the same day that the damage occurred.

43 In relation to the house occupied by Timothy Ella, Teresa Haines-Brown, Latoya Brown, Terrence Ella and Kimberly Ella, Joe Brown, Teresa’s father, gave evidence that police spoke to him that day and that on 15 February 1996 he gave a statement to the police about the attack on Tim Ella’s house in December 1995. Tim Ella gave evidence that on the night his house was damaged he spoke to Constable McCallum and said, “pointing to the Campbell family members, who were standing around with weapons, axes etc. ‘I want these people charged for what they have done to my house and cars.’” He then said he took police around the house and showed them the damage and the cars that had been axed and burnt.

44 NSW Police did not charge any person/s responsible for damaging the water supply at the Aboriginal community at Wallaga and attempting to cut down a power pole carrying power to that community. Max Harrison gave evidence that “The Campbells came and smashed the water supply in December 1995, and they cut the electricity pole ...” Annexure Q to Calita Murray’s affidavit is a record of interview with Teresa Haines-Brown and Inspector Floor which took place on 5 June 1996. In that interview, Ms Haines-Brown says that police said they couldn’t arrest anyone because it was private property. She stated that “The water tank was done by the Campbells, when it was smashed the Police had the road blocked, they must not have seen who did it because no-one was arrested. Then they came back and did the other tank and there was water running down the road. . . . The electricity pole was done during the night, I don’t know who did that, there was no evidence.” Annexure S to Calita Murray’s affidavit is record of interview between Sean Burke and Inspector Floor on 3 June 1996. Mr Burke was co-ordinator of Merriman’s Local Aboriginal Land Council. He described the police response to the power pole being cut down as follows:

“...Dick Rostron came out and had a look at it, didn’t seem to investigate it as well as he could have, and gave the okay to the electricity people to repair it, without gathering any of the evidence available on site. . . . I have no knowledge of anyone being charged. The evidence that was there was that a blunt chainsaw was used by the size of the wood chips at the base of the pole. I actually worked out which way the escape was done and found a foot print in the mud. I contacted the Narooma Police and told them where the evidence was, I told the electricity people to stay away from this area and I took a plaster cast of the shoe print. It was a blundstone boot, size 10, you could work out the pattern on it . I actually drew the pattern to scale and took it into the Police at Narooma. . . I think there was a deficiency in the investigation. No-one seemed interested.”
No person has been charged in relation to those incidents.

45 The NSW Police failed to make arrests following the destruction and burning of a house occupied by Timothy Ella, Teresa Haines-Brown, Latoya Brown, Terrence Ella and Kimberly Ella on 10 December 1995 and 11 December 1995. Annexure Q to Calita Murray’s affidavit is a record of interview with Teresa Haines-Brown and Inspector Floor on 5 June 1996. In that interview, Ms Haines-Brown says that her house was fire-bombed by members of the Campbell family on 11 December 1995 and that no one saw who did it but there was a beer bottle with some petrol in it and the police did not check the bottle. When asked whether she was aware that people had been charged in relation to the damage to her house, Ms Haines-Brown said “Yeah. I don’t know who but. It took them about five months to do it but I know a couple have been charged with it.” When asked whether she was happy with the action taken, Ms Haines-Brown said, “It was slow, a slow process. I’m not really happy about it.” Timothy Ella gave evidence that on the night of 11 December when he went back to his house there was a beer bottle with fuel in it left in the fire place. He said “The police arrived several hours later and I showed them the beer bottle which was left there and which I had not touched. The police took the beer bottle.” Annexure K to Ms Murray’s affidavit sets out the NSW Police response to the allegation at paragraphs 33 to 36. According to NSW Police, no person has been charged in relation to those incidents because of the lack of any evidence as to the perpetrators.

46 The NSW Police failed to secure crime scenes and evidence. This allegation appears to relate, at least in part, to the power pole incident discussed at [44] above.

47 The NSW Police failed to provide an opportunity appropriate to the circumstances for the interview and assistance of the Applicants. This is a general assertion details of which are provided in some of the statements. For example, Lynette Johnson alleges that police told her to go into Narooma to make statements. She does not indicate who told her that or when they told her.

48 NSW Police failed to obtain protection orders including orders prohibiting the alleged attackers from approaching (etc) the Applicants and requiring the alleged attackers to surrender their firearms and other weapons. Ms McLeod gave evidence that in January 1996 she went to the Narooma police station and told them that she wanted AVOs against Ian Campbell, Desmond Campbell and Matthew Burgess. A Complaint and Summons document was prepared in relation to each of those people. Ms McLeod says that she does not recall going to court about those AVOs. Other allegations about AVOs in Ms McLeod’s statement are outside the time period of the complaint. In relation to the surrendering of firearms and other weapons, Tim Ella gave evidence that on the night his house was damaged he spoke to Constable McCallum and the Campbells remained outside the front of the house with their weapons and axes. Mr Ella said, “the police and I approached the Campbells and the police asked them to leave and get off the land” but they did not leave.

49 The NSW Police relied on mediation – and on 10 December 1995 allowed one-on-one fist fights to occur – to resolve the situations at Wallaga Lake. Mr Ahoy gave evidence about one to one fist fights between members of the Harrison/McLeod and Campbell families. He says that two police officers were present when this occurred but does not make any allegation that those officers allowed the fights to occur. Joe Brown’s statement says that “The police stood back and watched it happen.” Ron McLeod gave evidence that “I saw Eddy Foster and the policeman go and talk to Buddy Campbell and they arranged for one-on-one fist fights.” Mr McLeod also said that “After the fights the police arranged with the elders to have a meeting between us and the Campbells at the Umburra community hall … The meeting went for about an hour and at the end everybody seemed to agree that things were resolved.” Tim Ella gave evidence about the one-on-one fights and said that it was the police’s suggestion. According to Mr Ella, the police were present during the entire period of the fights.

50 Annexure S to Calita Murray’s affidavit is a record of interview between Sean Burke and Inspector Floor on 3 June 1996. Mr Burke was co-ordinator of Merriman’s Local Aboriginal Land Council. When asked whether the police response overall was satisfactory, he said “Given the circumstances at that time the overall response, yes. There were individual matters, but the overall response yes. There was a strong direction towards mediation in those early days.” When asked about the one-on-one fights, Mr Burke said, “In the first stage it was a one on one supervised fight. Supervised by elders and police. An unarmed fight, a bare knuckle fight one on one. After the re-eruption of it early this year a reduction in hostilities has been brought about by agreement that certain members of the community leave the community.”

Conclusion

51 Tribunal’s approach. In determining whether the complaint should be dismissed under s 111, we will assess the strength of the evidence and the legal flaws in the complaint in combination with the issues relating to the passage of time since these incidents and the fact that NSW Police and the Ombudsman have addressed many of the allegations. Below we have summarised some of the factual and legal shortcomings of the complaint.

Slow response to calls for assistance . There are some allegations of approximate times that police were called and some evidence as to the times they attended. The evidence as to the time police actually arrived is imprecise. In the majority of instances the name of the police officer or the police station which was contacted is not provided. One of the legal difficulties with this allegation is that there is no evidence of the response times in non-Aboriginal communities. Indeed the main basis for comparison appears to be the response times for Aboriginal people not living in an Aboriginal community. As we have said, that is not the correct basis for a comparison under the Act.

Time taken to charge offenders for the assault of Margaret Brown. Any allegation about the failure to charge an offender does not come within the definition of “services” in the Act.

There is no evidence of the time taken to charge non-Aboriginal offenders in the same or similar circumstances. In addition, there is no evidence that any delay was because of the applicants’ Aboriginality.

NSW Police did not talk to the applicants whose cars and homes were destroyed. There does not appear to be any dispute that a person was charged with the damage to the McLeod home on 12 December 1995. In those circumstances it is difficult to understand the significance of any allegation of not talking to the victims. In relation to the damage to the home occupied by Timothy Ella and others, the evidence discloses that no-one was charged with that offence until 14 April 1996. Again, there is no evidence of the time taken to charge non-Aboriginal offenders in the same or similar circumstances.

Damage to water supply and cutting down of power pole. Any allegation about the failure to charge an offender does not come within the definition of “services” in the Act. The allegations about failure to investigate this incident are dealt with below.

Failure to make arrests following destruction and burning of house. Any allegation about the failure to charge or arrest an offender does not come within the definition of “services” in the Act.

NSW Police failed to secure crime scenes and evidence. This allegation appears to relate to Sean Burke’s statement in relation to the failure to properly investigate the incident relating to the power pole. Taking Mr Burke’s evidence at its highest, there may have been some deficiencies in the way in which police investigated this matter. Again, any such deficiencies would not amount to unlawful race discrimination without some evidence or basis for drawing an inference that non-Aboriginal people would have been treated more favourably.

The NSW Police failed to provide an opportunity appropriate to the circumstances for the interview and assistance of the Applicants. This allegation has not been sufficiently particularised. While some of the evidence relates to the alleged failure by police to take statements from the applicants promptly, that evidence can all be subsumed under other allegations.

NSW Police failed to obtain protection orders and required the alleged attackers to surrender their firearms and other weapons. In relation to the obtaining of protection orders, there is insufficient evidence to establish that Police failed to obtain protection that they were requested to obtain. In relation to Ms McLeod’s evidence, she admits that police prepared a complaint and summons document in relation to each person she nominated. She cannot remember whether or not she went to court about those AVOs. The allegation of failing to obtain protection orders has not been sufficiently particularised and lacks substance. In relation to the alleged failure to require “the attackers” to surrender their firearms, even if it could be proved, it does not establish that Police treated Aboriginal people less favourably than non-Aboriginal people. Both groups were Aboriginal, so no relevant comparison can be made.

NSW Police failed to provide adequate protection to the applicants and their community. This allegation is too vague and lacking in particulars to constitute unlawful discrimination.

Mediation and one to one fights. The reliance of NSW Police on mediation does not come within the meaning of refusing services or providing services on unfavourable terms. There was no evidence that mediation was an unfavourable way of attempting to protect the people involved from injury or death. The allegation about the one-to-one fights is that police officers stood by and allowed Aboriginal elders to supervise the fights. The applicants would need to prove that NSW Police failed to provide crime prevention services to the applicant’s on the ground of their Aboriginality. It could also be argued that NSW Police were treating Aboriginal people more favourably than non-Aboriginal people by allowing them to resolve the dispute according to the preference of the elders.

Failure to provide adequate law enforcement. Again, this allegation is too vague and lacking in particulars to constitute unlawful discrimination. It is merely a summary of some of the other allegations.

52 Despite the fact that the applicants were legally represented, many of the allegations either lack substance or are misconceived. The most fundamental misconception is that the conduct is on the ground of the applicants’ residence in an Aboriginal community. That misconception has led to the applicants comparing the manner in which police officers responded to their concerns with the manner in which they responded to the concerns of members of the Campbell family. The appropriate comparison is how NSW Police treated or would have treated non-Aboriginal people in the same or similar circumstances. These deficiencies, by themselves, were not sufficient to persuade us that we should dismiss the entire complaint. However, there are two other reasons, apart from the evidentiary and legal weaknesses discussed above, which convince us that the complaint should be dismissed “for any other reason.” The first is that NSW Police and the Ombudsman have dealt with the substance of most of the complaint and the second is that NSW Police would be significantly prejudiced if required to respond to incidents that are now more than nine years old.

53 Police investigation and Ombudsman’s inquiry. On 12 December 1995, the NSW Ombudsman received a complaint from Calita Murray about the conduct of NSW Police. That complaint contained allegations identical to those set out in paragraphs (a) to (f) at [36] above. NSW Police conducted an investigation and prepared a report in response to those complaints. That response is contained in a letter to the Ombudsman dated 2 October 1996 (Annexure U to Calita Murray’s statement.) Assistant Commissioner Peate found several of the allegations “not sustained". However, in relation to the delay in arresting anyone for assaulting Ms Haines-Brown, he said:

“I am reluctant to accept the excuse that the delay was caused by Ms Haines-Brown’s unavailability or the fact that a statement from her had not been obtained. I do not consider that any inquiry should be unnecessarily delayed and the absence of Ms Haines-Brown’s evidence should not have impacted upon her assault being investigated. I therefore find this issue sustained and have requested that the Patrol Commander, Batemans Bay, not only managerially counsel the responsible officers but also bring to the attention of all his staff the necessity to sensibly approach any similar matters.”

54 Assistant Commissioner Peate admitted that “the operating procedures in place to combat the on-going feuds, were inadequate” and added that:

While not totally convinced that a feud of this magnitude could have been totally averted, I must concede that had more developed procedures been available to police, the outcome may have been different. While the matters that prompted this investigation cannot be altered, much is being undertaken to improve the situation on a long term basis.

55 On 23 January 1997, the Deputy Ombudsman, Mr Chris Wheeler, made a determination. (Annexure 17 to Marilyn Hamilton’s statement.) The Ombudsman’s conclusion was as follows:

In conclusion, while this Office has recognised some of the problems with the police response to the violence, I consider that the steps which have been taken by the Police Service in response to your complaint, including the meeting attended by you with Mr Peate, to be appropriate to ensure the development of a better response by police should further problems arise in the future. This Office, through the Aboriginal Complaints Unit, has also initiated regular meetings between concerned groups such as the South Coast Aboriginal Legal Service and the Aboriginal Land Councils in the area to facilitate discussions of problems experienced by Aboriginal communities dealing with police. These initiatives and others to be developed by the Police Service in consultation with the local community and this Office must be ongoing to ensure that an adequate service is provided in the event of future incidents.

56 NSW Police acknowledged shortcomings in their own procedures and practices during the course of their investigation. The final report also conceded that there were some problems with the way NSW Police responded to the volatile situation at Wallaga Lake. Significant resources have already been spent in an effort to address the applicants’ concerns. Evidence from NSW Police indicates that the Ombudsman’s recommendations have been implemented.

57 Prejudice relating to the passage of time. NSW Police provided evidence that the passage of time since the events occurred means that it would be very difficult and expensive to respond to the many of the allegations. The incidents under consideration occurred during the period from November 1995 to February 1996, more than nine years ago. The applicants complained to the President of the Anti-Discrimination Board on 19 September 1997. Apparently because of a lack of resources, the President did not advise NSW Police of the complaint until June 2001. Consequently, the first NSW Police heard of the race discrimination complaints was more than five years after the events occurred. Two years later, on 20 March 2003, the President accepted the complaint under the former s 88(4) of the Anti-Discrimination Act 1977 despite the fact that they had been lodged out of time. On 10 March 2004, the President referred the complaint to the Tribunal.

58 NSW Police received the applicants Points of Claim and witness statements on 20 December 2004. The statement of Ms Ann Dale, solicitor with the Crown Solicitor’s Office, sets out the efforts that she has made to investigate the allegations. NSW Police say that they will need to identify and locate over 45 police officers who may have been involved in the incidents or who were the subject of allegations. Some of those officers are no longer employed by NSW Police and would have to be located. Preliminary inquiries have revealed that the remainder are widely dispersed across New South Wales. Considerable travel costs as well as other incidental costs would have to be incurred if they were to be interviewed. While some of the officers concerned provided statements to the Ombudsman during the course of that inquiry, for those police who have not already prepared statements, their memory of events will be extremely unreliable. Preliminary inquiries have also revealed that a large number of documents including diaries, occurrence pads and briefing notes, which may be relevant to the allegations, have either been destroyed or cannot be located. We appreciate that the lengthy delay is mainly attributable to the period of time that the complaint was at the Anti-Discrimination Board but regardless of its cause, the effect of such the delay is the same.

59 The evidence demonstrates to us that NSW Police could have done much more than they did to lessen or prevent the tragic events that took place at Wallaga Lake during 1995 and 1996. Many of the applicants felt extremely frustrated that police did not respond as quickly as they had hoped to their calls for help. They were also outraged by the apparent reluctance of police to obtain statements and to thoroughly investigate alleged wrongdoing. Those concerns may well be justified, but the manner in which the case has been presented and other circumstances beyond the control of the applicants have persuaded us that the complaint should be dismissed “for any other reason.”

Costs

60 NSW Police applied for costs in relation to the entire proceedings including the unsuccessful mediation. Under the former s 111(2) of the Act:

Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.

61 While given the opportunity to do so, the applicants did not make any submissions in relation the application for costs.

62 In Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 at [21] the Tribunal observed “that as a general proposition a combination of circumstances is required in order to justify an award of costs”. The kinds of circumstances which justify the making of a costs award include:

- the manner in which the parties have conducted the proceedings, especially where this has caused delay and cost: Russell v The Commissioner of Police, NSW Police Service and Others [2002] (No2) NSWADT 252; Holdaway v Qantas Airways Ltd (1992) EOC 92-430; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 at [25].

- Where there was an abuse of process; that is, the proceedings were instituted and pursued in bad faith or vexatiously: Tu v University of Sydney (No 2) [2002] NSWADTAP 25; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 at [25]; Wilde v University of Sydney (No 2) [2004] NSWADT 16 at [25].

63 In deciding whether or not to award costs, the Tribunal is concerned with the conduct of the applicants after the complaint was referred on 10 March 2003. We are not satisfied that costs should be ordered in relation to the hearing of the application for summary dismissal. The proceedings were not instituted in bad faith or vexatiously. Despite the fact that we have dismissed the complaints, we are not persuaded that any of the circumstances outlined by NSW Police justify an award of costs in relation to the hearing. Similarly, there is no justification for awarding costs in relation to the mediation.

64 We are more concerned by the applicants’ non-compliance with the timetable. The Tribunal’s first direction was that the applicants’ evidence be put on by 2 July 2004. No material was filed in response to that direction. On 2 September 2004, Ms Bangash, solicitor with the carriage of the matter for NSW Police, had a telephone conversation with Ms Keyes. Ms Bangash states that Ms Keyes told her that she hoped to have the Points of Claim finished by the end of the week but thought that the hearing dates would need to be vacated. At a further case conference on 7 September 2004, the applicants were given until 28 September to file and serve their material. No material was filed in response to that direction and, following a request from NSW Police, a further case conference was held on 30 November 2004. At that conference, the applicants said that there were still six to eight affidavits outstanding but they could be filed within two weeks. There is some dispute about the nature of the representations that Ms Keyes made during that case conference. NSW Police indicated at the conference that it would be making an application for summary dismissal under s 111.

65 The third timetable directed the applicants to file and serve their evidence by 14 December. On that date Ms Keyes wrote to NSW Police requesting an extension until 20 December. There is a dispute about whether Ms Bangash contacted the Tribunal advising that the Points of Claim and statements had not been received before or after she received that letter from Ms Keyes. At a case conference held on that date Ms Keyes indicated that she was in a position to file and serve the applicants’ material that day. As well as directing that all material be filed by 20 December, the Tribunal directed that the applicants not be permitted to file any further primary material prior to the s 111 application being determined. That direction was made in fairness to NSW Police given the amount of time that the applicants had already been given to file their evidence.

66 Ms Bangash was cross-examined about certain matters including the content of Ms Keyes’ explanation to the Tribunal about the delay and the timing of her correspondence to the Tribunal on 14 December 2004. Ms Keyes mentioned that she was at a disadvantage in relation to this evidence because she could not give evidence herself. Even on the evidence from NSW Police, she made some efforts to explain the delay and/or negotiate an extension on 2 September and 14 December. While it is not unusual in complex cases of this kind, for an applicant to have difficulty complying with directions for the filing and service of material, Ms Keyes could have done more to alert NSW Police and the Tribunal of the difficulties she was facing. Ideally, Ms Keyes should have contacted NSW Police well before the date for filing had passed to advise them of her inability to comply and to seek agreement to an amended timetable.

67 We are not satisfied that Ms Keyes deliberately misled the Tribunal in any way, however she did fail to inform NSW Police and the Tribunal in a timely manner of her inability to comply with the directions. The case conferences on 7 September, 30 November and 20 December 2004 were all required as a result of the applicants’ non-compliance with the timetable. Ms Keyes obviously had difficulty co-ordinating the production and execution of the witness statements given that the applicants live in various areas of New South Wales. Furthermore, it is not unusual in complex cases of this kind for several case conferences to be required before a matter is ready for hearing. While some attendance costs may have been avoided had Ms Keyes attempted to advise NSW Police and the Tribunal of her difficulties sooner, we are not satisfied that her failure to do so justifies an order for costs.

Orders

The complaints are dismissed.

No order as to costs.