Hall v State of NSW (Department of Corrective Services)

[2006] NSWADT 243

CITATION:	Hall v State of NSW (Department of Corrective Services) [2006] NSWADT 243
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Maddison Hall RESPONDENT State of NSW (Department of Corrective Services)
FILE NUMBER:	061008
HEARING DATES:	26/06/2006
SUBMISSIONS CLOSED:	06/26/2006
DATE OF DECISION:	08/14/2006
BEFORE:	Britton A - Judicial Member
CATCHWORDS:	Felons (Civil Proceedings) Act 1981 - application for leave
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Felons (Civil Proceedings) Act 1981 Judiciary Act 1903 (Cth)
CASES CITED:	Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60 Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 Radio 2UE Sydney Pty Ltd v Burns [2005] NSWADTAP 69 Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) [2006] NSWCA 185 Z (No. 3) v University of A [2001] NSWADT 182
REPRESENTATION:	APPLICANT E Raper, barrister RESPONDENT K Nomchong, barrister
ORDERS:	1. Pursuant to Section 4 of the Felons (Civil Proceedings) Act 1981 leave is granted to the Applicant to proceed with her complaints of unlawful discrimination; 2. Within six weeks of the date of these orders the Applicant is to file Points of Claim and any evidence on which she seeks to rely. ; 3. Both parties are invited to make further submissions in respect of the Respondent’s request for the issue of summonses. Any submissions are to be filed and exchanged within seven days of the date of the Applicant filing and serving the material referred to in Order 2. The Tribunal will then determine the Respondent’s application “on the papers”; 4. Within six weeks of being served with the material referred to in Order 2. the Respondent is to file and serve Points of Defence and any evidence on which it seeks to rely; 5. Within two weeks of being served with the material referred to in Order 4, the Applicant may elect to file and serve evidence in reply ; 6. Matter to be set down for further directions on 31 October at 9.15 a.m

1 Ms Maddison Hall, the Applicant in these proceedings, is currently serving a custodial sentence at Mulawa Correctional Centre. The substantive proceedings concern a complaint made by Ms Hall to the Anti-Discrimination Board Tribunal of discrimination on the ground of transgender status and disability.

2 Section 4 of the Felons (Civil Proceedings) Act 1981 provides 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.

3 Both parties agree that the provision applies in this matter. Not surprisingly, it is submitted for Ms Hall that the Administrative Decisions Tribunal ought allow her complaint to proceed. The Respondent neither consents to nor opposes that application.

Does the Felons (Civil Proceedings) Act Apply?

4 Section 4 prevents a felon who has committed a serious indictable offence, instituting “any civil proceedings in any court” unless leave is granted. It is not in issue that Ms Hall has been convicted of a serious indictable offence. A preliminary issue arises for determination, namely, whether the Administrative Decisions Tribunal (the ADT) is a court for the purpose of the Felons (Civil Proceedings) Act 1981.

5 It was not in issue in these proceedings that the Tribunal is a court for the purposes of s 4. However, shortly after the hearing of this application, the NSW Court of Appeal handed down a decision which now may cast doubt on this issue.

6 In Trust Company of Australia Limited (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) [2006] NSWCA 185 the Court of Appeal considered whether the ADT is a “court of a State” for the purposes of Chapter III of the Constitution. Their Honours, Spigelman CJ, Hodgson and Bryson JJA, concluded that while the ADT has many characteristics that answer statutory provisions relating to “courts” it is, nevertheless, not a “court of the state” because it is not predominantly composed of judges. The Court of Appeal disapproved of the decision of the Appeal Panel in Radio 2UE Sydney Pty Ltd v Burns [2005] NSWADTAP 69 which held that the Tribunal sitting as the Equal Opportunity Division (and as the Appeal Panel dealing with appeals from the Equal Opportunity Division) is a court for the purposes of s 39(2) of the Judiciary Act 1903. Their Honours held that the question to be determined is whether the ADT as a whole is a “court of a State”.

7 In the leading judgement Spigelman CJ, made clear that the issue raised on appeal was confined to whether the Tribunal was a “court of a State” for the purposes of Chapter III of the Constitution. He said:

29 For many statutory purposes, the Tribunal would have sufficient of the characteristics of a court to answer a statutory provision relating to “courts”. However, the constitutional expression “court of a State”, picked up in s86(2) of the Trade Practices Act , adopts a more stringent requirement than may be intended by the State Parliament when using the word “court” in a statute. The issue arises under a Commonwealth statute, which invokes s 77(iii) of the Constitution.

8 Under the Federal Constitution and the Judiciary Act 1903 Federal jurisdiction may be exercised by State courts. The Constitution carefully circumscribes the exercise of the judicial power of the Commonwealth. It was by that question alone that the Court of Appeal was exercised. What the Federal Constitution and the Judiciary Act 1903 have to say on the topic of the judicial characteristics of the ADT is of relevance only insofar as the Tribunal seeks (or sought) to exercise the judicial power of the Commonwealth. It is not directly relevant to the question whether the ADT can be considered a court for the purposes of the Felons (Civil Proceedings) Act 1981 and the decision can therefore be distinguished on its own facts.

9 The parties have not had an opportunity to make submissions about the relevance of this decision to these proceedings. Given my ultimate conclusion I have decided not to invite them to make submissions about the relevance of the Skiwing to this application. The Chief Justice in Skiwing considered that for many statutory purposes the Tribunal has the characteristics of a court. The legislative intention underlying the enactment of the Felons (Civil Proceedings) Act 1981 was to prevent convicted prisoners from abusing legal process. The process of the Tribunal is just as capable of abuse as that of any court. Given the quasi-judicial nature of the proceedings, and the qualified endorsement of the Court of Appeal, I proceed on the basis that the ADT is a court for the purposes of this application while acknowledging that this issue is perhaps slightly unclear.

Should the Tribunal grant to leave the matter to proceed?

10 The effect of the Felons (Civil Proceedings) Act 1981 is to bar felons from instituting civil proceedings unless leave is granted by the relevant court. The Act provides no express guidance on the factors to be taken into account in granting leave.

11 The long title of the Act is: “An Act to provide that a person convicted of, or found to have committed, a felony shall not be incapable of instituting and maintaining civil proceedings in any court”.

12 In moving the Bill for a second time the Attorney General Frank Walker said:

The only reasons for the refusal of the grant of leave will be that the Court is not satisfied that the proceedings are not an abuse of Court process, and that there is a prima facie ground for the proceedings. This aspect of the measure is designed simply to prevent persons in custody, having been convicted of a felony, from attempting to institute vexatious or frivolous actions. Naturally the Government is concerned that the interests of the proper administration of justice and for the protection of the welfare of the community as a whole, efforts should be made to ensure that prisoners are not able to take advantage of the removal of their legal disability to attempt to disrupt due process of the law.

13 The parties agree that the questions to be asked when determining whether leave ought be granted are whether the proceedings constitute an abuse of process; whether an arguable case has been made out and whether the proceedings can be characterised as vexatious.

Background

14 Ms Hall (then known as Noel Compton) was sentenced to life imprisonment following conviction for murder in 1989. Some time after this she identified as female.

15 In August 1999, Ms Hall elected to be transferred to a female correctional centre. Since that time, with the exception of a short period where she was returned to a male correctional centre following allegations of inappropriate behaviour, Ms Hall has been housed at a female correctional centre.

16 On 19 May 2005 Ms Hall lodged a complaint with the President of the Anti-Discrimination Board alleging that the Department of Corrective Services had discriminated against her on the grounds of disability (HIV Status) and transgender status. On 5 August 2005 Ms Hall made a further complaint to the Board.

17 The Board’s attempts to conciliate the matter were unsuccessful and by letter dated 20 February 2006 the President referred Ms Hall’s complaint, together with the report of the investigation into those complaints, to the Tribunal.

18 The matter was listed for a case conference on 27 March 2006 before Deputy President Hennessey. Counsel represented the Respondent. Ms Hall attended by phone.

19 A ‘Summary of Complaint,’ prepared by the Deputy President and issued to both parties following that conference, identified the allegations that formed the basis of each complaint in the following terms:

Disability Discrimination Complaint

Allegation 1: The Governor of Mulawa, Ms Boyko, placed Ms Hall on an indefinite segregation order due to her HIV status.

Allegation 2: Governor Boyko denied Ms Hall the use of a fan despite the fact that she had a medical certificate recommending that she be allowed to use a fan because of HIV status.

Allegation 3: Governor Boyko directed and instructed Prisoner Officer Tokey to inform the inmates working in Gencor (CSI Industry), prior to Ms Hall commencing work there, that she was HIV Positive and had AIDS.

Transgender Complaint

Allegation 4: Prisoner Officer Loy consistently referred to Ms Hall as “he/him” and stated that she is not female and has made derogatory statements about her.

20 Elements of the complaints While not entirely clear it would appear from the material filed to date that both complaints are cast as complaints of “direct discrimination” and I proceed on that basis. It is not in issue that Ms Hall suffers from, or is thought to suffer from, a disability as defined by the Anti-Discrimination Act 1977 (AD Act). Nor is it in issue that she is a transgender person as defined by that Act.

21 Ultimately to succeed in respect of each allegation Ms Hall must prove on balance:

First, that the conduct she complained of falls within s 38M and or s 49M of the AD Act;

Second, that the Respondent treated her less favourably than it treated, or would have treated, a person who is not a transgender person or who does not suffer from a disability in the same circumstances (or both), in circumstances which were not materially different;

Third, that one of the reasons for any less favourable treatment was her transgender status or her disability (or both).

22 The four allegations do not necessarily stand or fall together and that is not contended. It may be that Ms Hall can succeed in proving one of these matters and not the others. That is a matter for the evidence.

Prima facie ground?

23 The Respondent pointed out that Ms Hall had elected not to file any evidence at this stage and, accordingly, that the only material available to the Tribunal to determine the s 4 application was that contained in the President’s Report. It contended that that material was insufficient to support a complaint of disability or transgender discrimination.

24 Accordingly, argued the Respondent, the Tribunal would be entitled to find that there is no case to answer and refuse leave for the matter to proceed.

25 It was argued for Ms Hall that, at this stage, the Tribunal is not required to decide whether this application will succeed. No forensic investigation is to be undertaken. The Tribunal is required to decide whether, on the basis of the complaint referred from the President, there an arguable case to be made against the Respondent. Ms Hall is not and cannot be required to prove the success of her claim at this stage. Rather she is required to prove that there is at least one identifiable ground of complaint which brings her within the scope of the legislation.

26 The Respondent’s submission raises the question of what the Tribunal needs to be satisfied of before it can conclude that there is an arguable ground (or arguable grounds) for the proceedings. While not exactly on point, it seems to me that the approach taken by the Tribunal in reviewing a decision made by the President of the Board to decline a complaint, provides a useful basis for approaching this question. In Lal v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 68 the Tribunal decided that the President had not made the correct and preferable decision in determining that Mr Lal’s complaints of discrimination, harassment and victimisation did not disclose any contravention of the Act. After discussing the decision of Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60, the Tribunal concluded:

24 Based on these observations, I would re-frame the test set down by the Tribunal in Crewdson’s Case to state that:

The President may decline a complaint as not disclosing a contravention of the Act if:

the complainant fails to allege a contravention of a specific section of the Act (for example, section 50) or does not allege behaviour prohibited by the Act (for example, sex discrimination in hiring), or

the respondent is not a person who is arguably amenable to the Act; or

after reasonable investigation, including discussions with the complainant, it is not arguable that there is some evidence in support of the material facts.

27 This is a test similar to that in civil litigation when an argument is made for summary dismissal of a cause of action. It is not necessary that a plaintiff prove that he or she has a good case but simply that there is a case to be argued. Courts are very reluctant to strike out or dismiss proceedings and will generally only do so in a clearly hopeless case. The strength or weakness of a case is a question for determination at a trial.

28 In this matter the first two elements of the test set out in Lal appear to be satisfied. The ‘Summary of Complaint’ sets out the relevant sections of the AD Act that Ms Hall alleged were contravened. It is uncontroversial that the Respondent is arguably amenable to the AD Act.

29 Therefore the only question of substance that remains to be determined is whether there is some evidence to support the material facts on which Ms Hall’s complaints are based. The Respondent contended that there is not. It argued that the very notion of a prima facie case is that there must be some evidence (which will stand unless displaced) to support the allegation made, and, which, if accepted, would be sufficient to justify the complaint. Here it is asserted that much of the “evidence” on which Ms Hall’s complaints are based amount to nothing more than bald assertions.

30 The problem with this argument, of course, is that the evidence, such as it is, has not been adduced. All the Respondent can say is that it does not understand what the evidence is, that is relied on to support the complaints. Ms Hall is able to give her own evidence of those things that are within her knowledge from her own observations and experiences. While questions of weight arise, she may also be able to give hearsay evidence concerning certain allegations she makes. She can summons witnesses and documents that may support her case. An eyewitness is entitled to make a “bald assertion” that, for example, she was refused a fan by a prison officer. That is evidence. The weight to be attached to it is another question entirely but once given it is evidence that must be taken into account in assessing the strength of or truthfulness of the allegation or complaint.

31 The issue of how the Tribunal ought approach the task of determining whether there is some evidence to support the material facts on which a complaint rests was examined by the Tribunal in Z (No. 3) v University of A [2001] NSWADT 182. Z (No. 3) concerned an application to join a number of persons to proceedings that involved complaints of unlawful discrimination. No evidence had been filed at the time the application was considered and the only material the Tribunal had before it was the President’s Report and Points of Claim. From this material the Tribunal concluded that at that stage it had no reliable, corroborating and objective evidence to support many of the Applicant’s assertions. The Tribunal went on to examine a number of cases where for the purposes of various applications, it was necessary to have regard to the “evidence” relied on by the complainant in the early stages of the proceedings. It commented:

45 The Tribunal is aware of the difficulties associated with establishing a case of unlawful discrimination in the absence of direct evidence. Often the primary source material from which inferences might properly be drawn to prove an applicant’s case is in the possession of the respondent. Often too, the only mode of proof available to an applicant is to rely upon a concatenation of circumstances from which an inference might properly be drawn of unlawful discrimination: see the remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626.

46 This view is consistent with the approach adopted in Reyes – Gonzalez v Sydney Institute of Technology [1998] NSWEOT 4 and Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. Although the Tribunal in Reyes – Gonzalez doubted that at a hearing on the merits the complainant would be able to substantiate his allegations, it was not convinced that the allegations were “lacking in substance” such as to justify the complaint being dismissed under s 111(1) of the Act. The Tribunal made the following remarks at paras 4.6 and 4.7:

4.6 Prior to the commencement of a hearing on the merits, it is difficult if not impossible for the Tribunal to determine whether there may be substance to a complainant’s allegations. The extent of the Tribunal’s ability to determine whether there may be substance to a complainant’s allegations will depend upon the stage which has been reached in any hearing on the merits.

4.7 Where a complainant concedes that the whole of his or her case is documented, it may be possible for the Tribunal to examine the documentation on a pre-hearing basis in order to determine whether documentation is capable of supporting the allegations in the complaint. However, it will generally be far more appropriate that the merits of a complainant’s case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of complainants who lack legal representation.

47 The Tribunal in Reyes – Gonzalez then went on to say at para 4.8:

“… Prima facie, it is difficult to see the statements in question as racist. However, it is possible that when viewed in context one or more of the statements might be found to be discriminatory.”

32 From this analysis the Tribunal formulated the following test: taking the Applicant’s case at its highest, are his assertions [of unlawful discrimination] capable of being converted into evidence? By this I understand the Tribunal to have meant that if an assertion is capable of being expressed not merely as an opinion or a conclusion (e.g. “He is racist”) but as an objective fact (e.g. “X gave jobs only to white fellas”), which in turn can be proved or disproved by oral or documentary evidence or both, the complaint is an arguable one and ought be considered on its merits. I adopt that approach to the “evidence” for the purposes of determining Ms Hall’s application.

33 The Segregation Allegation It is not in issue that Ms Hall was segregated for a period of time while an inmate at Mulawa.

34 To succeed in her complaint of unlawful disability discrimination Ms Hall must establish among other things that one of the reasons for the Respondent’s decision to segregate her from other inmates was her disability. In a letter to the Board dated 4 August 2005 the Respondent denied that Ms Hall’s “medical condition” played any role in its decision. Rather, it contended the decision was made because she posed a threat to other inmates (President’s Report, Tab 3).

35 As the Respondent pointed out, there is no direct evidence at this stage to support Ms Hall’s belief that her disability played any role in the Respondent’s decision. In my view, however, it is premature to determine whether there is any basis on which an inference could be drawn that one of the reasons for the decision to segregate Ms Hall was her HIV status.

36 The Fan Allegation The Respondent contended that there is no evidence that Ms Hall had, as alleged, requested a fan or been refused one on account of her HIV status. This seems to overlook Ms Hall’s own direct testimony that she had done so. Ms Hall may be able to call evidence to support her assertion.

37 In her complaint received by the Board on 19 May 2005 Ms Hall asserted that “Governor Boyko denied me my fan”. She also alleged that other inmates, namely sweepers, were given fans. These allegations in my view are capable of being converted into evidence and, if accepted, could ground a finding of “less favourable treatment”. Whether her account is ultimately accepted or not is a question for another day.

38 Again it is argued by the Respondent that there is no direct evidence that Ms Hall’s disability played any role in this alleged less favourable treatment. Ms Hall, on the other hand, invites us to draw an inference in her favour. For the reasons stated above it is my view that at this stage of the proceedings it would be premature to determine whether there is any basis on which such inference could be drawn.

39 Unauthorised Disclosure of HIV status allegation Ms Hall alleges that the Respondent, through Governor Boyko, “instructed Overseer … Tokey to inform other inmates of her HIV status. It is unclear from the material filed to date how Ms Hall came to learn of this disclosure.

40 Absent further details it is difficult to understand how this allegation could be proven except by hearsay evidence. If that is all that Ms Hall relies on it may be weak evidence but, again, that is ultimately a question of weight.

41 Derogatory comments allegation In her complaint to the President Ms Hall alleged that Prisoner Officer Loy consistently referred to her as “he/him” and stated that she is not female. In addition she alleged that Officer Loy made derogatory statements about her. These allegations are denied.

42 The allegation concerning the comments attributed to Officer Loy in my view are capable of being converted into evidence which, if accepted, could support a finding of “less favourable treatment”.

43 Summary In my view there is some evidence or allegations capable of being converted into evidence, to support the material facts on which Ms Hall’s complaints are based. Whether ultimately those allegations are in fact converted into evidence, accepted by the Tribunal and found to be sufficient to support the elements necessary to establish a complaint of unlawful discrimination is another matter entirely. These matters go to the merit of Ms Hall’s complaints and are not required to be determined in this application.

44 Notwithstanding the arguments now raised by the Respondent, it is worth noting perhaps that the President did not, as he could have, exercise his discretion under s 92 of the AD Act to decline all or part of Ms Hall’s complaints. This provision grants the President wide power to decline a complaint, where for example s/he is satisfied that the complaint, or part of it, is frivolous, vexatious, misconceived or lacking in substance, or that the conduct alleged, if proven, would not disclose a contravention of the AD Act (see s 92(1)(a)(i) and s 92(1)(a)(ii)).

45 At this stage of the proceedings I am satisfied that that there is a prima facie ground for the proceedings.

Abuse of Process

46 It is argued for the Respondent that Ms Hall’s motivation for making her complaints to the President is to pressure the Respondent to vary the Management Plan put in place in 2005 in substitution for the Segregation Order. She sees this, it is contended, as a way of improving her chances of being granted probation as a result of being able to participate in a wider range of activities at Mulawa.

47 Even if that claim were accepted, and it really is an issue of credit that should be tested at the hearing of the matter, the fact that a person has more than one reason for raising a complaint or hopes to gain some sort of advantage from doing so, does not necessarily invalidate the complaint or turn the making of it into an “abuse of process”. Individuals pursue complaints of unlawful discrimination for varied reasons which might include retention of current employment or accommodation arrangements, to name but a few. That the motivation for making a complaint might include a desire by the complainant to improve their position (however that is to be measured) if their complaint does not in my view establish “abuse of process”. It all depends on the circumstances of the individual case. As matters stand at present, I am not satisfied that the Respondent has made out an abuse of process by Ms Hall.

Summons

48 The Respondent has requested that the Registrar issue summonses to Ms Hall and nominated third parties for the production of documents. That application is opposed. I have decided to defer considering this application until such time as the evidence on which Ms Hall intends to rely on has been filed.

Orders/Directions

1. Pursuant to Section 4 of the Felons (Civil Proceedings) Act 1981 leave is granted to the Applicant to proceed with her complaints of unlawful discrimination.

2. Within six weeks of the date of these orders the Applicant is to file Points of Claim and any evidence on which she seeks to rely.

3. Both parties are invited to make further submissions in respect of the Respondent’s request for the issue of summonses. Any submissions are to be filed and exchanged within seven days of the date of the Applicant filing and serving the material referred to in Order 2. The Tribunal will then determine the Respondent’s application “on the papers”.

4. Within six weeks of being served with the material referred to in Order 2. the Respondent is to file and serve Points of Defence and any evidence on which it seeks to rely.

5. Within two weeks of being served with the material referred to in Order 4, the Applicant may elect to file and serve evidence in reply.

6. Matter to be set down for further directions on 31 October at 9.15 am.