Harrington v Corrective Services New South Wales, Department of Justice

[2017] NSWCATAD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Harrington v Corrective Services New South Wales, Department of Justice [2017] NSWCATAD 46
Hearing dates:	27 April 2016, On the papers
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Wakefield, Senior Member
Decision:	1. The respondent’s application is allowed in part. 2. The complaint is dismissed in whole.
Catchwords:	ADMINISTRATIVE LAW; Disability Discrimination; direct discrimination; indirect discrimination; victimisation; application for dismissal under s 55 of the Civil and Administrative Tribunal Act, 2013; lacking in substance; want of prosecution
Legislation Cited:	Anti-discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Administration of Sentences) Regulations 2008 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Interpretation Act 1987 (NSW) Strata Schemes Management Act 1996 (NSW)
Cases Cited:	Application of Justice Health; re a Patient [2011] NSWSC 432 Braiding v Charles Sturt University [2016] NSWCATAD 90 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Duffy v Da Rin [2014] NSWCA 270 Fox v Office of the Board of Studies [2012] NSWADT 236 Hoser v Hartcher [1999] NSWSC 527 IW v City of Perth and others[1997] HCA 30 Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 Liria v Papuan Oil Search Ltd [2012] NSWADT 73 Monteiro v State of New South Wales (No 2) [2015] NSWSC 1901 Murtough v NSW Bar Association [2011] NSWADT 243 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Owners Corporation of Strata Plan 4521 v Zouk & Anor [2007] NSWCA 23 Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 Spicer v Owners Corporation SP 64558 [2016] NSWCATAP 11 State of New South Wales v Whiteoak [2014] NSWCATAP 99 Rainsford v Victoria [2007] FCA 1059 Waters v public transport corporation (1991) 173 CLR 349 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Zhang v Blinds Pty Ltd [2010] NSWADT 91
Texts Cited:	Dennis Pearce AO & Robert Geddes, Statutory Interpretation in Australia, 8th Edition
Category:	Procedural and other rulings
Parties:	Wayne Harrington (Applicant) Corrective Services NSW, Department of Justice (Respondent)
Representation:	Solicitors: W Harrington (Applicant in person, by telephone) Professional Standards Branch, Commissioner of Corrective Services NSW (Respondent)
File Number(s):	1510467

Reasons for Decision

Introduction

1. By the proceedings Mr Harrington has alleged that whilst he was an inmate in custody, Corrective Services NSW (CSNSW) discriminated against him in the provision of goods and services on the grounds of disability both directly and indirectly in breach of s 49M of the Anti-Discrimination Act, 1977 (AD Act). He says that at the relevant times an untreated prostate condition prevented him from being able to provide a mandatory urine sample on demand giving rise to the commission of correctional centre offences. He also says that he was the subject of victimisation by CSNSW after he made complaints about his treatment.

2. By the application under consideration, CSNSW has sought an order that the proceedings be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) upon the ground that Mr Harrington’s claim is misconceived or lacking in substance. It says that the subject requirement to provide a urine sample on demand is not a service within the meaning of s 49M of the AD Act.

3. CSNSW subsequently sought to amend the application to include a ground under s 55(1)(d) of the NCAT Act that the proceedings be dismissed for want of prosecution by reason of Mr Harrington’s failure to be ready to proceed at the hearing of the application and failure to comply with directions for the filing of written submissions thereafter. For the reasons which follow the application is allowed in part and the complaint is dismissed in whole.

The nature and history of the complaint

4. As has been indicated, in general terms Mr Harrington’s complaint is that he suffers from a disability in the nature of an enlarged prostate gland which prevented him on a number of occasions from providing urine samples on demand. The relevant demand was made under clause 150 of the Crimes (Administration of Sentences) Regulation 2008 (CAS Reg 2008) which, subject to one to which we shall turn in the course of these reasons was in the following terms:

“150 Urine sample whether or not drug use suspected

(1)   A correctional officer holding office or acting in a rank that is of or above the rank of Chief Correctional Officer may require an inmate to supply for testing or analysis a sample of urine and give directions as to how the sample is to be supplied.

(2)   The directions may require the inmate to comply with directions given by a correctional officer as to how the sample is to be supplied.

(3)   An inmate must not refuse or fail to comply with a direction under this clause.

Note : Failure by an inmate to comply with the requirements of this subclause is a correctional centre offence.

(4)   A urine test must be carried out by a government analyst.

(5)   A sample may be required under this clause and tested for the presence of a drug even though the inmate concerned may not be reasonably suspected of having administered a drug to himself or herself or of being under the influence of a drug.”

5. Mr Harrington says that in requiring him to provide a urine sample, CSNSW is providing him with goods or services. Mr Harrington alleges that he has been discriminated against because of his disability. He has been charged with “failure to supply a sample urine” pursuant to Clause 150(3) of the Crimes (Administration of Sentences) Regulation 2008 despite, he says, having told prison staff about his condition. In particular, on 26 May 2013 he was charged with “failure to supply a sample urine” after having been given a glass of water and a two hour time frame in which to comply. He was unable to do so. The next day he was informed that he would be punished for failing to supply the sample. He also failed to supply a sample on 9 October 2013.

6. Mr Harrington believes that his treatment by CSNSW occurred due to a medical condition which he was unable to control. He believes that there were other ways in which he could have been tested which could be considered a reasonable adjustment for his disability. Mr Harrington says that he has suffered loss of privileges and had other punishments imposed as a result of his failure to provide urine samples on demand.

7. Mr Harrington also claims that he has been victimised for complaining about the alleged discrimination. This included being forced to wear leg shackles in public, being transferred unnecessarily between correctional facilities further away from his family, being housed unnecessarily in an observation cell at the Cessnock facility and in the Mental Health Unit of the Long Bay facility on transfer and having a medical appointment cancelled.

8. CSNSW in its response to the complaint says that there was nothing in Mr Harrington’s medical records to substantiate his claim of a disability at the relevant time. It further says that in requiring alcohol and drug testing of inmates it is not providing “goods or services” to inmates. It says that drug testing is a practice authorised by the relevant enabling legislation for the purposes of assisting in the management of Correctional Centres, that is, to reduce the negative effects of drug dealing and drug induced behaviour by inmates for the security and good order of a Correctional Centre. In reply Mr Harrington says that he has proven that CSNSW has in fact punished him for his medical condition. He says that he has proven dishonesty with respect to the operation of CSNSW and that the relevant operations procedures manual has been breached in respect of miscellaneous health issues, policies and procedures more than once. He says that his treatment is not isolated. Not all of these matters are relevant to his claim.

9. Mr Harrington filed his complaint with the New South Wales Anti-Discrimination Board (ABD) on 26 May 2014. The complaint was accepted for investigation on 12 June 2014.

10. On 5 August 2015 at Mr Harrington’s request the complaint was referred by the President of the ADB to the Tribunal for public hearing pursuant to s 93C of the Anti-Discrimination Act, 1977 NSW (AD Act). The President filed with the Tribunal on 6 August 2015 the President’s Report and the President’s bundle of documents. The period of the complaint is from 26 May 2013 to 25 May 2014. Mr Harrington was in the relevant period an inmate in the custody of CSNSW held at NSW Correctional Centres under the Crimes (Administration of Sentences) Act 1999 (CAS Act).

11. The President’s Report identifies the type of complaint to be discrimination on the grounds of disability in the provision of goods and services and victimisation in breach of ss 49A, 49B, 49C, 49M, 50 and 53 of the AD Act.

12. Mr Harrington was released from custody on parole on 21 April 2016.

Procedural history of the matter before the Tribunal

13. The proceedings were listed for case conference on 9 September 2015. Mr Harrington was available by telephone. Directions were made at that time that Mr Harrington must provide his statement of claim, his own statement and other witness statements, relevant documents, if any, held by him and evidence of loss or damage by 29 October 2015. CSNSW was to provide Points of Defence and evidence upon which it was intended to rely by 26 November 2015. Mr Harrington was to provide any material in reply by 10 December 2015. The matter was listed for a case conference on 16 December 2015 at 10.00 a.m.

14. The Tribunal received correspondence from Mr Harrington on 12 November 2015 being a letter dated 7 November 2015. In that letter Mr Harrington enclosed copies of correspondence between him and Legal Aid NSW (letters dated 24 October 2015 and 2 November 2015) and the Information Access and Privacy Unit of the New South Wales Department of Justice (letters dated 19 October 2015 and 26 October 2015). By its letter dated 2 November 2015, Legal Aid NSW advised that as there was no current operating grant they were unable to assist Mr Harrington in the proceedings and that Legal Aid NSW could only act on his behalf if an appeal to the Legal Aid Review Committee against a determination by Legal Aid NSW not to provide him with a grant was successful. The Department of Justice advised Mr Harrington that his application for records was being processed.

15. In his letter to the Tribunal, Mr Harrington sought a ten week adjournment of the proceedings pursuant to s 57 of the Legal Aid Commission Act. This was to give him time to finalise his appeal to the Legal Aid Review Committee and to obtain documents from the Department of Justice. By letter dated 20 November 2015 to Mr Harrington, the Divisional Registrar advised that the directions made on 9 September 2015 for the filing of material were vacated and that the proceedings remained listed for case conference on 16 December 2015. By letter dated 11 December 2015 to Mr Harrington the Divisional Registrar advised that the case conference scheduled for 16 December 2015 was vacated pending determination of Mr Harrington’s application to the Legal Aid Review Committee and that the proceedings were listed for case conference on 27 January 2016.

16. The proceedings were next the subject of the case conference on 27 January 2016. Mr Harrington appeared by telephone. At that conference CSNSW indicated that it wished to bring an application for dismissal of the complaint by reason that the activities involved in requiring the provision of a urine sample were not “services” within the meaning of s 49M of the AD Act. Directions were made that CSNSW file and serve any submissions as to why the proceedings should be dismissed by 24 February 2016 and Mr Harrington file and serve any submissions in reply by 24 March 2016. The application was listed for hearing on 27 April 2016 for one half day.

17. By letter dated 12 February 2016, Mr Harrington wrote to the Tribunal setting out the documents which he wished to file in his case. These comprised what he described as:

1. A full brief from the ADB (pages 1 to 203).

2. Corrective Services NSW Operations Procedures Manual s 19.1 to 19.18.

3. Urine analysis in Corrective Centres

4. Corrective Services NSW Operations Procedures Manual s 8.27 Duty of Care.

5. Corrective Services NSW Operations Procedures Manual s 7.3 Miscellaneous Health Issues.

6. International Covenant on Civil and Political rights Part 3.

7. Cessnock Correctional Complex Failed Urine Test Management Guidelines.

18. Mr Harrington noted that inmates had no access to photocopy equipment in prison and that the material could be found on the Corrective Services website. He also sought to call seventeen witnesses to give evidence.

19. By letter dated 7 March 2016, the Registry wrote to Mr Harrington advising that the CSNSW’s application for summary dismissal would be determined on the basis of the material contained in the President’s Report, its submissions to be filed on 24 February 2016 and Mr Harrington’s submissions in reply. It noted that neither party would be permitted to call witnesses to give evidence at the preliminary hearing and that his application to summons witnesses would be considered at a further case conference.

20. CSNSW filed submissions on 24 February 2016. These were served on Mr Harrington on 26 February 2015. Mr Harrington filed his submissions dated 1 March 2016 on 21 March 2016.

21. CSNSW’s application came before the Tribunal on 27 April 2016. Ms Taverner appeared for CSNSW. Mr Harrington appeared by telephone. At the commencement of the hearing, Mr Harrington advised the Tribunal that he had been released from custody on parole on 21 April 2015. He said that he had intended but was unable to attend the hearing personally by reason of conditions attached to his parole order which prevented his passage through certain council areas when travelling. He sought an adjournment to allow him a further opportunity to obtain legal advice regarding the application being something he had been unable to do in custody. He also wished to file further written submissions. He said that the matter was of some importance to him and that he wished to have a legal representative consider the question of whether or not the requirement to provide a urine sample by CSNSW was a “service” within the meaning of the AD Act.

22. Ms Taverner sought to resist the adjournment application. She submitted that Mr Harrington had been made aware of his parole conditions, that he had previously had the opportunity to obtain legal advice and that the matter had been listed for hearing of CSNSW’s application since January 2015. She said that in circumstances in which the substantive application had no merit it would be an inappropriate use of resources for the matter to be further adjourned and that she was ready to proceed to hearing. She said that the only issue for consideration on the application was whether or not urine testing was a “service” within the meaning of the AD Act. She said that she was content to rely on her written submissions and the authorities referred to in them and had nothing further to add.

23. In those circumstances and to accommodate Mr Harrington’s request for an opportunity to obtain legal advice and file further submissions and in circumstances in which the issue for consideration was limited to that identified by Ms Taverner, the Tribunal was satisfied that the application could adequately be determined in the absence of the parties on the written submissions and that it was appropriate to make an order dispensing with the hearing. The following orders and direction were made:

1. Pursuant to s 50(2) of the [NCAT Act] the hearing of the respondent’s application be dispensed with.

2. The applicant (respondent on the application) file and serve any further submissions on or before 25 May 2016.

3. The application to be determined on the papers.

24. Mr Harrington did not file and serve any submissions consequent upon the direction made on 27 April 2016. CSNSW wrote to the Tribunal on 6 June 2016 in effect seeking to amend its application for dismissal of the proceedings to include a ground of want of prosecution of the proceedings under s 55(1)(d) of the NCAT Act.

25. At the Tribunal’s direction on 5 July 2016 the Divisional Registrar forwarded a letter to the parties in the following terms:

“On the 27 April 2016 Tribunal made orders in the following terms:

1) Pursuant to s50(2) of the Civil and Administrative Tribunal Act, 2013 the hearing of the respondent’s application to be dispensed with

2) The applicant to file and serve any further submissions on or before 25 May 2016

3) The application to be determined on the papers.

The applicant did not file or serve any submissions on or before 25 May 2016. In a letter dated 6 June 2016 to the Tribunal and copied to the applicant the respondent made a request for the proceedings to be dismissed under s55(1)(d) of the Civil and Administrative Tribunal Act, 2013 for want of prosecution (the supplementary application).

S50(2) of the Civil and Administrative Tribunal Act, 2013 provides the Tribunal may make an order dispensing with the hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal. S50(3) provides that the Tribunal may not make an order dispensing with the hearing unless it has first afforded the parties an opportunity to make submissions about the proposed order and taken any submissions in to account.

The Tribunal makes the following direction and order:

1) The applicant is to file and serve any submission limited to the making and content of supplementary application on or before 13 July 2016

2) Unless parties inform the Tribunal to the contrary, in writing by no later than 20 July 2016 the application including the supplementary application will be determined on the papers pursuant to s.50(02) of the Civil and Administrative Tribunal Act, 2013.”

26. Mr Harrington was forwarded a copy of the letter from CSNSW to the Tribunal to his last known address notified to the Tribunal. He was also provided by letter dated 5 July 2015 forwarded to his last known address with a copy of the Tribunal’s directions. The Tribunal is satisfied that Mr Harrington is on notice of the further ground of CSNSW’s application.

27. Section 36(1) of the NCAT Act provides that the “guiding principle” of the Act is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. Each party is under a duty to co-operate with the Tribunal to give effect to the guiding principle and for that purpose to participate in the process of the Tribunal and to comply with directions and orders of the Tribunal; s 36(3) NCAT Act. Additionally, the practice and procedure of the Tribunal is to be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate with the importance and complexity of the subject matter of the proceedings; s 36(4) NCAT Act.

28. In the Tribunal’s view, it is appropriate for the purposes of giving effect to the guiding principle and to facilitate the resolution of the real issues of the proceedings that leave be granted to CSNSW to include as a ground for its application the alleged want of prosecution under s 55(1)(d). Mr Harrington is on notice of the proposed supplementary ground and has been given an opportunity to respond to it. The Tribunal has proceeded to consider CSNSW’s application including the supplementary ground on the papers.

Material before the Tribunal

29. No pleadings or evidence has been filed by the parties. The Tribunal had before it the President’s Report and the President’s Bundle together with the parties’ written submissions and correspondence which has been identified. Since filing his submissions on 21 March 2016, Mr Harrington has had two opportunities to file further submissions on the application including the supplementary ground by which he could have made reference to additional relevant material. He did not do so.

Legislative basis for the application

30. Section 55 of the NCAT Act provides as follows:

“(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)   The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.”

31. As has been indicated the application is made under s 55(1)(b) and s 55(1)(d) of the NCAT Act. The Tribunal will consider the alternative grounds for the application in turn.

Whether the claim is misconceived or lacking in substance

32. In undertaking its consideration the Tribunal has had regard to the principles for summary dismissal identified in the authorities. In Murtough v NSW Bar Association [2011] NSWADT 243 in which the Tribunal was considering an application under s 110 of the AD Act the Tribunal said at [24] – [25]:

“24   The principles relating to summary dismissal are similar to those applied by courts when exercising the discretionary power to summarily dismiss proceedings in civil litigation: Rees, Lindsay & Rice, Australian Anti-Discrimination Law, The Federation Press, 2008 at 662. The respondent has the onus of establishing that the proceedings should be dismissed.

25 A complaint should only be summarily dismissed with exceptional caution where circumstances clearly warrant such action: Dey v Victorian Railways Commissioners [1949] HCA 1 [32]-[34]; General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 at 129-30. In Rana v University of South Australia (2004) 136 FCR 344 Lander J expressed the view at 355 that summary dismissal "should only be adopted when it is clear, beyond any doubt that the applicant has not, and cannot, articulate in writing a reasonable cause of action."

33. The need for caution is increased where the application to have the complaint dismissed is made prior to the adducing of the claimant’s evidence at the substantive hearing; see Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36].

34. The words “misconceived or lacking in substance” appear in s 55(1)(b) of the NCAT Act. They are identical to the words used in s 92(1)(a)(i) of the AD Act being a ground upon which the President of the Anti-Discrimination Board may decline a complaint or part of a complaint. Section 102 of the AD Act provides that the Tribunal may dismiss a complaint in whole or in part on a ground upon which the President might decline a complaint under s 92(1)(a)(i). What is meant by the terms “misconceived” and “lacking in substance” under s 92 of the AD Act was considered by the Tribunal in Fox v Office of the Board of Studies [2012] NSWADT 236 saying at [3]:

“Misconceived means that the facts of this case do not come within the provisions of the AD Act. Lacking in substance means that there is no factual basis for the allegations or that those allegations lack merit.”

35. In Spicer v Owners Corporation SP 64558 [2016] NSWCATAP the proceedings concerned an application under s 185(4)(a) of the Strata Schemes Management Act, 1996 which provided that the Tribunal might dismiss an application for an order if the application was “frivolous, vexatious, misconceived or lacking in substance”. The section is in relevantly identical terms to those used in s 55(1)(b) of the NCAT Act and s 92(1)(a)(i) of the AD Act.

36. In Spicer the Appeal Panel considering the meaning of “misconceived” saying at [154] – [155]:

154.   … It seems to us that misconception relates to the nature of the proceedings either by reference to them being in a form that is not permitted or seeking relief that could not be granted.

155.   In the present case the nature of the claims made by the respondent were not a misconception of any legal requirement for the making of a claim, they did not seek impermissible orders and they were brought in conformance with the legislative provisions as we have determined apply in connection with providing a certificate from a qualified valuer.”

37. Hennessy LCM in Braiding v Charles Sturt University [2016] NSWCATAD 90 considered the circumstances in which a complaint would be “lacking in substance” within the meaning of an application under s 102 of the AD Act. Her Honour’s reasons are apposite to the interpretation of s 55(1)(b) of the NCAT Act. Her Honour said at [23] – [27]:

“23. Section 102 of the Anti-Discrimination Act gives the Tribunal power to dismiss, at any stage, proceedings relating to a complaint on certain grounds on which the President of the Anti-Discrimination Board may also decline a complaint. Two of those grounds are that the proceedings are “frivolous, vexatious, misconceived or lacking in substance” or that “the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulation”.

24. The legislative context of these provisions includes the “guiding principle” set out in s 36 of the NCAT Act. In addition, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). The Tribunal is also to act with “as little formality as the circumstances of the case permit”: NCAT Act, s 38(4).

25.   The power to dismiss a complaint because the conduct, even if proven, would not disclose a contravention of the legislation is similar to the inherent power of courts to strike out proceedings that are bad in law or clearly hopeless: Bernard Carins, Australian Civil Procedure 10th edition, Thomson Reuters at 504. A pleading will be struck out if the court is satisfied that even if the plaintiff proves all the factual allegations in the pleading, those facts would not establish the essential elements of a cause of action.

26. While directions are often made for an applicant alleging a breach of the Anti-Discrimination Act to lodge Points of Claim, pleadings are not always required. Under s 94A, the complaint is to comprise the original complaint lodged with the President, any amendment to the complaint and any other documents or information obtained or recorded by the President that help identify the subject-matter of the complaint. Subject to the rules of procedural fairness, an applicant is not obliged to plead a cause of action in a way that would satisfy the rules of pleadings in courts. Before dismissing proceedings the Tribunal would have to be satisfied that on the basis of the complaint lodged with President, the material in the President’s Report and any amendments to the complaint, there is no provision of the legislation which could possibly have been breached.

27. The term “lacking in substance” has a slightly wider meaning. In Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 45 the Court of Appeal interpreted the phrase in the context of the informal investigative powers in the Strata Schemes Management Act 1996 (NSW). The Court concluded at [45] that, “It would be inappropriate given the extraordinary powers triggered by a finding that an application is lacking in substance, to attribute to the phrase a meaning other than “not reasonably arguable”. Although the legislative context here is different, that interpretation is also apt given that the power to summarily dismiss a complaint should be used sparingly and only where there is a high degree of certainty that the complaint will not succeed: AB v State New South Wales [2014] NSWSC 81 at [50] quoting Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].”

38. There is a further consideration. Unlike the situation in Braiding, Mr Harrington has not filed Points of Claim or any evidence. The only material before the Tribunal is the President’s Bundle and the parties’ submissions. In Braiding Hennessy LCM said at [33]:

“33 In Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 the Administrative Decisions Tribunal (ADT) commented that we “should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us”. A significant qualification to this principle is that the evidence supporting the claim must be before the decision maker. It would be wrong for a decision maker to suggest a claim where there was insufficient evidence to support it. For example, in Walker v State of New South Wales [2003] NSWADT 13 at [11], the ADT said that there was insufficient evidence to “fashion” a case of indirect discrimination:

‘The Tribunal's function as an impartial decision-maker is likely to be imperilled if, in the absence of evidence, it constructs arguments in support of particular complaints. This latter point is of particular relevance in this case where, with appropriate evidence, it may have been possible to mount claims of direct and/or indirect discrimination. As the case law demonstrates (see e.g. Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1987) 168 CLR 165 and Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349), indirect discrimination cases are particularly complex. Considerable legal skill is required to construct a case and to gather and present evidence in support of it.’”

39. In accordance with the authorities to which we have referred, in order to succeed on its application that the complaint be dismissed under s 55(1) of the NCAT Act, CSNSW must satisfy the Tribunal that the element of the claim requiring proof, namely that the subject requirement to provide a urine sample falls within the meaning of “goods or services” under s 49M is either misconceived in the sense that the underlying facts do not come within the section or lacking in substance, that is, that the element is not reasonably arguable or that there is a high degree of certainty that the complaint will not succeed.

40. In considering the application the Tribunal has also had regard to the caution which should be exercised when an application is made before the parties have filed their evidence. In this instance there appears to be no contest between the parties as to the factual matter of Mr Harrington being required to provide samples of urine and his failure to do so. To the extent that other matters might be the subject of evidence including as to the purpose for which the relevant activity was undertaken under clause 150 of CAS Reg 2008, Mr Harrington has had the opportunity to identify the evidence upon which he would seek to rely.

Relevant legislation

41. The complaints referred by the President fall under ss 49A, 49B, 49C, 49M, 50 and 53 of the AD Act.

42. Disability discrimination in the provision of services is provided for in s 49M of the AD Act which provides:

“49M   Provision of goods and services

(1)   It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

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

(b)   in the terms on which he or she provides the person with those goods or services.

(2)   Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.”

43. “Disability” is defined in s 4(1) of the AD Act to mean:

"disability" means:

(a)   total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   the presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   the malfunction, malformation or disfigurement of a part of a person’s body, or

(d)   a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)   a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

44. Section 49A of the AD Act expands the concept of disability as follows:

“49A   Disability includes past, future and presumed disability

A reference in this Part to a person’s disability is a reference to a disability:

(a)   that a person has, or

(b)   that a person is thought to have (whether or not the person in fact has the disability), or

(c)   that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).”

45. Section 49B provides for what constitutes discrimination “on the ground of disability” for the purposes of s 49M:

“49B   What constitutes discrimination on the ground of disability

(1)   A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a)   on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

46. What constitutes “unjustifiable hardship” within the meaning of s 49M(2) is set out in s 49C which provides:

“49C   What constitutes unjustifiable hardship

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:

(a)   the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b)   the effect of the disability of a person concerned, and

(c)   the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.”

47. Section 53 provides for liability of principals and employers as follows:

“53   Liability of principals and employers

(1)   An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2)   If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3)   Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4)   For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

48. In order to succeed in his claim for alleged direct disability discrimination under s 49(1)(a), Mr Harrington will need to establish:

1. That he had a disability within the meaning of s 4(1);

2. That CSNSW was providing him goods or services within the meaning of s 49M;

3. That CSNSW discriminated against him by refusing to provide services to him or in the terms on which they were provided; and

4. That the discrimination occurred “on the ground of” his disability.

49. In order to succeed on his claim for indirect discrimination under s 49B(1)(b), Mr Harrington will need to establish:

1. That he suffers from a disability within the meaning of s 4(1) of the AD Act;

2. That CSNSW required him to comply with a requirement or condition;

3. That the requirement to comply was in the course of provision of goods or services;

4. That the requirement or condition was one which a substantially higher proportion of persons who did not have his disability comply or are able to comply with;

5. That the requirement is not reasonable having regard to the circumstances of the case;

6. That the requirement was one which Mr Harrington does not or is not able to comply.

50. As has been indicated, CSNSW’s application under s 55(1)(b) of the NCAT Act is restricted to the question of whether it was providing Mr Harrington with “services” within the meaning of s 49M when requiring urine samples. This is one element which would need to be established by Mr Harrington in both his claims for direct and indirect disability discrimination. Subject to one matter, the application does not concern and no submissions were received in respect of the other elements of direct or indirect disability discrimination and these have not been considered. The one matter is whether CSNSW was on notice of Mr Harrington’s disability. This goes to the issue of whether, if the Tribunal considers that in carrying out the activity of requiring the provision of a urine sample falls within the meaning of goods and services under s 49M, CSNSW refused to provide Mr Harrington with the services or discriminated against him on the terms in which it provided him with the services “on the ground of” his disability. This matter will be considered in the course of these Reasons.

Interpretation of s 49M

51. The decision of the Appeal Panel in State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [134] concerned the proper construction of s 19 of the AD Act. Section 19 is in relevantly identical terms to s 49M and provides:

“Provision of goods and services

19 Provision of goods and services

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.”

52. CSNSW submits and the Tribunal accepts that the AD Act renders discrimination on specified grounds unlawful only in “specific areas of social activity”. As Appeal Panel in Whiteoak (in relation to questions of law being the decision of the President and in relation to questions other than questions of law being the decision of the President and Dr Field, General Member) stated at [139] and [140]:

“139.   Given the title and structure of the AD Act and in the light of the observations of the Court of Appeal and High Court on the nature of the prohibitions in that and similar Acts referred to above, it should be accepted that s 19 is not, on its terms and in the context of the AD Act as a whole, a general prohibition on racially discriminatory conduct and it should not be construed or applied so as to have that effect. In that sense, the appellant's contention that the expression "goods or services" in s 19 are words of limitation which forms part of ground 2 is correct.

140.   Consequently, it would be an error to adopt a construction of s 19 that was so broad as to render unlawful every instance of discrimination constituted by differential, detrimental treatment on the ground of race. Such a construction might effectively render the other sections in Part 2, Divisions 2 and 3 of the AD Act unnecessary.”

53. The words “goods or services” are words of limitation. Accordingly, Mr Harrington will have to establish that in requiring an inmate to provide a urine sample under clause 150 of CAS Reg 2008, CSNSW is providing him with “goods or services” under s 49M.

54. This will involve a two part exercise. Firstly, there is the question of the proper construction of s 49M. That is a question of law. Secondly, there is the application of s 49M properly construed to the facts which are alleged.

55. The Appeal Panel in Whiteoak at [142] set out the appropriate basis for construing the words “goods and services” in s 19 taking into account not only that they are words of limitation but also the text of the section “taking the ordinary and grammatical meaning of the words of the provision in the context of the AD Act as a whole and taking into account its legislative purpose”. In doing so the Appeal Panel referred to the summary of the relevant principles concerning statutory construction set out in Smith’s Snack Food Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 at [84] and the authorities cited there. The Appeal Panel also found that it was appropriate to consider whether there was any authority which cast light on the proper construction of the section or required a particular construction to be adopted.

56. As has been indicated s 19 is in identical terms to s 49M other than by the substitution of the word “race” for “disability” and the substitution of “the other person is provided” for “he or she provides the person”. Section 49M proscribes discrimination in the provision of goods and services on the ground of disability as opposed to race. The context of the AD Act as a whole, its legislative purpose and relevant authorities identified by the Appeal Panel in its construction of s 19 are identical to those to be considered upon the proper construction of the term “goods and services” in s 49M. Findings by the Appeal Panel in Whiteoak as to the proper construction of the terms “provides” and “goods or services” in s 19 are accordingly apposite to the proper construction of s 49M.

57. CSNSW firstly contended that the activity of drug testing cannot be “goods” within the meaning in s 49M. The term is not defined in the AD Act. CSNSW referred to the ordinary meaning of the term “goods” in the Macquarie Dictionary (Online Ed) being “possessions, especially moveable effects or personal belongings; articles of trade; wares, merchandise, especially that which is transported by land”. CSNSW submits that the conducting of a drug test on an inmate cannot be regarded as “goods” within this definition.

58. By reference to that definition of “goods” including that which is transported by land, Mr Harrington submitted that urine is a “merchandise” because it is transported by land from Cessnock Corrective Centre to Palms Pacific Laboratory Medicine Services at North Ryde by a courier service and the courier will be paid for the delivery of those goods. He submitted that the toxicology unit is also paid for analysing his urine and it will view it as “goods and services”. He lastly said that the Australian Taxation Office would see his urine as goods and services as the carrier and laboratory services would pay a goods and services tax in respect of the analysis carried out.

59. Mr Harrington also made reference to the definition of “personal belongings” in Websters Dictionary. He said that “personal” means:

“Belonging to, relating to or affecting the individual, the self-exclusivity for a given individual, pertaining to or affecting the person or body.”

60. He submitted that his urine is a personal belonging owned by himself and is therefore a “merchandise” or “goods” within the definition referred to.

61. With respect to Mr Harrington these submissions do not address the issue to be considered. The question is whether the activity being undertaken under clause 150 of CAS Reg 2008 falls within the meaning of the words “goods or services” under s 49M not whether the product of a urine test, namely a sample is a “good”. It is the activity being undertaken by CSNSW which is to be considered not anything produced by Mr Harrington.

62. In addition to the definition referred in the Macquarie Dictionary (Online Ed) the Oxford English Dictionary (Online Ed) identifies the meaning of the word “goods” as follows:

“Merchandise or possessions.”

63. The Cambridge Dictionary (Online Ed) identifies the meaning of “goods” as:

“Items for sale, or possessions that can be moved.”

64. Having regard to these definitions in the Tribunal’s view the term “goods” in its ordinary and grammatical meaning in s 49M refers to tangible products. This construction is consistent with the context in which the term appears in s 49M and elsewhere in the AD Act where it is juxtaposed to the words “or services”. This describes as the Appeal Panel in Whiteoak said at [153] “both tangible and intangible products”. “Goods” are to be contrasted with “services”. In the Tribunal’s view, “goods” being tangible products cannot include an activity or requirement to supply a sample and any direction as to how it is to be supplied. Such an activity or requirement is of its nature intangible.

65. The parties did not make any submission about whether there were any authorities casting light on the proper construction of the word “goods” in s 49M or which required a particular construction to be adopted. For the purposes of this application, the Tribunal is satisfied that Mr Harrington’s contention that on a proper construction of s 49M the relevant activity is “goods” is not reasonably arguable. There is a high degree of certainty that it will not succeed. The Tribunal accordingly finds that it is lacking in substance.

66. CSNSW next submitted that in conducting the activity under clause 150 within Correctional Centres in New South Wales it is not providing “services” within the meaning of s 49M.

67. Section 4(1) of the AD Act defines services to include:

"services" includes:

(a)   services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b)   services relating to entertainment, recreation or refreshment,

(c)   services relating to transport or travel,

(d)   services of any profession or trade,

(e)   services provided by a council or public authority,

(f)   services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.”

68. CSNSW submitted that the activity of requiring a urine sample does not fall within the definition of “services” outlined in s 4. It noted that the definition is inclusive rather an exhaustive. However, as the Appeal Panel in Whiteoak said at [145] although the definition of “services” might appear to be inclusive paragraphs 4(1)(a) to (e) of the AD Act do not actually define that term because they use the word being defined to describe what is included in the term. Section 4 does not of itself preclude the activity from being a service.

69. CSNSW by reference to Whiteoak at [146] relied upon the determination of the High Court in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at [23] (dealing with inclusive definition of services in almost identical terms to paragraphs (a) to (e) of s 4(1) of the ADA) where it was held that “services” should be “read as having its ordinary and broad meaning”. The Appeal Panel in Whiteoak interpreted this at [147] referring to Duffy v Da Rin [2014] NSWCA 270 at [30] saying:

“Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence …”

70. CSNSW also relied on paragraphs [152] and [153] of Whiteoak in which the Appeal Panel stated in respect of the meaning of “services”:

“152.   The Oxford English Dictionary (Online Ed) identifies relevant meanings for the plural form as follows:

19 ...

c. collect. pl. Friendly or professional assistance.

31 ...

d. pl. Econ. The section of the Economy that supplies needs of the consumer but produces no tangible goods.

153. This latter definition of "services" indicates that the term when combined with the word "goods" refers to those products (tangible or intangible) which supply the needs of consumers. This is significant because the term "services" in s 19 only ever occurs in the collocation "goods or services"; it never appears alone. In the heading to s 19, "services" appears in the expression "Provision of goods and services". The text of the section therefore suggests that "services" will not in this context include activities in discharge of governmental functions or statutory duties which do not have as their primary or sole function meeting the needs of consumers. The heading, to the extent that it may be relied upon under ss 34 and 35 of the Interpretation Act 1987 (NSW), supports this view.”

71. As has been indicated, the reference to “goods and services” in s 49M is relevantly identical to that referred to by the Appeal Panel in Whiteoak in s 19 of the AD Act.

72. In Whiteoak at [155] and [156] the Appeal Panel considered that the meaning of “services” should be interpreted in the following way:

“155.   These meanings of "services", as illuminated by s 4(1), establish that "services" in its ordinary meaning in a context such as the present refers to those activities done for the purpose of supplying the needs of, providing assistance to, doing work for or providing help to persons. Paragraph (f) of s 4(1) has the effect that "services" also includes access to public facilities but that aspect of the meaning is not relevant to the present case.

156.   Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s 4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19.”

73. CSNSW further relied upon paragraph [157] in Whiteoak where the Appeal Panel pointed out that “services” used in s 19 of the AD Act refers to “the providing of, or a provider of, a public need, such as communications, transport etc”. The word “provides” appears in the same context in s 49M. The Appeal Panel noted at [157] that the word “provide” is defined in the Macquarie Dictionary as:

“1.   To furnish or supply.

2.   To afford or yield …”

74. The Appeal Panel then stated at [158]:

“158.   Both of these meanings convey the essential notion of making something available. They do not suggest in any way that ‘provide’ includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.”

75. CSNSW in effect submitted that on the basis of the reasoning in Whiteoak an activity cannot comprise a service within s 49M where it does not have as its primary or sole function meeting the needs of the relevant class of persons. Nor will that activity fall within the meaning of services where a governmental function or statutory duty is being imposed and the persons affected have no choice whether to accept or reject what is done or the outcome.

76. Mr Harrington submitted that as ameliorating legislation the AD Act should be construed beneficially. He said that the term “services” is capable of broad application and should be read in s 4 as having its ordinary and broad meaning.

77. He referred to the Websters Dictionary definition of “service” being:

“Occupation of a servant, public employment, a branch of this, specifically the armed forces, work done for others, benefit, advantage, friendly help or professional aid, a system of providing people with some utility, a facility providing some public demand, to make fit for service, as by repairing, to perform business functions in support of production and distribution of goods.”

78. He stated that the definition of “services” within the AD Act should be given a meaning to include:

“the duties or work of a public servant … serving the state or the community in a particular capacity.”

79. Mr Harrington submitted that amongst the ordinary meanings of the term “services” were the actions of serving, helping or benefitting; conduct attending to the welfare or advantage of another; or an act of helpful activity. He said that the test for whether an activity is “services” within s 49M is whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs.

80. With respect to Mr Harrington the Tribunal cannot accept this submission. The Appeal Panel in Whiteoak at [180] said as follows:

“180   For the reasons given above, I do not accept that every activity which could be characterised as beneficial or helpful to a class of persons constitutes "services" provided to that class of persons within the meaning of s 19. Having regard to the ordinary meaning of the terms in that provision and their context and purpose, providing "services" involves more than just engaging in activities which may be beneficial or helpful. The words of the section and the authorities, including IW and those referred to below, establish that activities which have contingent and consequential benefits for a class of persons but which are not performed for the purpose of benefiting that class are unlikely to amount to "services" provided to that person, especially where the person has no choice whether to accept or reject the outcome and where the activities are in performance a governmental function or of a statutory duty.”

The mere carrying out of an activity which might or might not be helpful or beneficial to a class of persons is not by itself determinative of whether the activity constitutes “services” under s 49M; see also Whiteoak at [153].

81. After review of the relevant authorities to determine whether they cast light on the proper construction of “services” or required a particular construction, the Appeal Panel (by the reasons of the President) concluded at [217] to [218]:

“217.   In my view, none of these authorities, apart from Contreras Ortiz if it were accepted as correct, provides a basis for departing from, and indeed they support, the conclusions that for the purposes of s 19 of the AD Act:

(1)   providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and

(2)   when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.

218.   Further, the authorities establish that merely because an activity might provide for some persons contingent and consequential benefits that, of itself, will not necessarily provide a basis for holding that the activity constituted "services" for the purposes of s 19 of the AD Act.”

82. No authorities were cited by the parties which might shed a different light on the proper construction of s 49M or require a particular construction of that section to be adopted. The proper construction of s 49M is a question of law. In the Tribunal’s view, for the purposes of this application, the decision of the Appeal Panel in Whiteoak on the question of the proper construction of the word “services” in s 19 of the AD Act and accordingly the relevantly identical words in s 49M in the context of the AD Act and its legislative purpose is authoritative and binding.

83. The next exercise is to determine whether the relevant activity falls within the operation of s 49M properly construed. The first part of this exercise is the identification or description of the activities alleged to constitute “services” which is a question of fact; see Whiteoak at [220] referring to Waters v Public Transport Corporation (1991) 173 CLR 349 at [361], [394] and [404].

84. Before undertaking this exercise it is necessary to clear up some anomalies in the submissions. CSNSW made reference to the Crimes (Administration of Sentences) Regulation 1999 [sic] and relevant clauses therein. This reference would appear to be in error. There has never been any such regulation.

85. The submissions also made reference to “clause 160(3)” of CAS Reg stipulating the requirement that an inmate must not refuse or fail to comply with a direction under clause 160. That reference would also appear to be in error. The President’s Bundle contains a copy of the misconduct report issued in respect of Mr Harrington’s failure to supply a sample of urine on 26 May 2013. It was stated that he had committed a Correctional centre offence under “Clause 150(3) Failure to supply a sample of urine”. It is headed “Misconduct Report Crimes (Administration of Sentences) Regulation 2001” [sic]. Similarly on 12 October 2013 it was alleged that he committed the same offence.

86. In the letter from CSNSW to the Anti-Discrimination Board dated 21 October 2014 reference is made to directions under clauses 149 and 150 of CAS Reg 2008. The misconduct reports referred to also make reference to offences being committed under clause 150(3). The Tribunal has accordingly proceeded to consider the submissions on the basis of the provisions of the CAS Reg 2008 which were operative at the relevant times.

87. Clause 150 provided at the date of the first test on 6 May 2013 as follows:

“150   Urine sample whether or not drug use suspected

(1)   A correctional officer holding office or acting in a rank that is of or above the rank of Assistant Superintendent may require an inmate to supply for testing or analysis a sample of urine and give directions as to how the sample is to be supplied.

164. In respect of the cancelled visit to John Hunter Hospital, Mr Harrington said that there is evidence that his referral was sent to John Hunter Hospital on 16 January 2014 (Exhibit 98). He subsequently spoke with someone at the Hospital who confirmed that he was on the urology waiting list on 28 January 2014 (Exhibit 161) and that as at 29 January 2014, Justice Health had been informed to reschedule Mr Harrington’s medical appointments to Long Bay rather than Cessnock (Exhibit 149). He said this is evidence that the cancellation of his appointment with John Hunter Hospital did not occur due to procedural error on the part of the Hospital as indicated by CSNSW.

165. As the Tribunal understands the grounds for his claim for victimisation Mr Harrington seeks as a first matter to establish that under s 50(1)(c) he has made an allegation that CSNSW or any other person has committed an act which whether or not the allegation so states would amount to a contravention of the AD Act.

166. Exhibit 154 in the President’s Bundle is an undated copy of a letter of complaint which Mr Harrington says he sent on 5 December 2013 to the Governor of New South Wales and others. In that letter he set out occasions on which he failed to produce a urine sample on demand and makes reference to what he refers to as his prostate condition. He said that he has been placed at a disadvantage because of a medical condition.

167. The Administrative Decisions Tribunal found in Liria v Papuan Oil Search Ltd [2012] NSWADT 73 at [23] that where an allegation does not amount to a contravention of the AD Act it does not come within the terms of s 50(1)(c). For the reasons which have already been given the Tribunal is not satisfied that Mr Harrington would be able to establish that the alleged discrimination occurred in the provision of goods or services within the meaning of s 49M. In this event the allegation set out in Exhibit 154 does not fall within the terms of s 50(1)(c) and this element of Mr Harrington’s claim for victimisation cannot succeed.

168. As to the second element there is evidence that Mr Harrington was caused by CSNSW to experience something, namely the transfer between correctional facilities. There is disputed evidence about whether Mr Harrington was forced to wear shackles on the occasion he refers to, whether he was placed in an observation cell and the mental health unit and that his medical appointment was cancelled. It is arguable on the evidence to which we have referred that these matters occurred. If they are established then he would have experienced those matters and the second element of a claim under s 50 would be established.

169. What constitutes a “detriment” in this context was considered by the Administrative Decisions Tribunal in Zhangv Blinds Pty Ltd [2010] NSWADT 91 at [80]:

“80   In Mitchell v Clayton Utz & Ors [2009] NSWADT 266 [at 20] the Tribunal referred to O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92-023 and the meaning of the phrase ‘subjecting ... to any other detriment’ in s 25(2)(c) of the AD Act, a section comparable to s 49D(2)(d). In that case Matthews DCJ adopted a definition of detriment as meaning ‘putting under a disadvantage’. The Tribunal went on to say at [21]

‘However, Mathews DCJ said in O’Callaghan at 105 that, ‘The disadvantage must be a matter of substance; the legislation [referring to s 25(2)(c) of the Anti-Discrimination Act] is not directed to trivial distinctions in the treatment afforded to men and women. Subject to that, it is difficult to define the limits of a concept which is ... essentially a matter of fact to be determined in each individual case.’ The test is an objective one. It is not sufficient for an employee to subjectively believe that he or she has been subjected to a detriment: Leonard v Youth Hostels Association of Victoria (1995) EOC 92-763 at p 78,651; Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].’”

172. Accordingly, objectively viewed, the disadvantage suffered by way of detriment must be a matter of substance. Under s 50(1) it can occur in any circumstances. In the Tribunal’s view if one or more of those circumstances which are reasonably arguable, namely being shackled in public, being placed unnecessarily in observation or in a Mental Health Unit, having a medical appointment cancelled and being moved further from family contact are established they would be likely to be found to be disadvantageous as a matter of substance in which event Mr Harrington would make out the third element.

173. The last element which Mr Harrington will need to establish is that the detriment occurred “on the ground that” he made the allegation the subject of s 50(1)(c). The meaning of “on the ground that” in the context of a victimisation complaint was extensively considered in Nicholls and Nicholls at [18] – [37]. The Tribunal concluded at [37] that:

“[t]he Tribunal should have asked itself whether the fact that Mr Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant …”

174. In the Tribunal’s opinion on a close reading of the materials contained in the President’s Bundle and Mr Harrington’s submissions there is no direct evidence upon which the Tribunal could ultimately be satisfied that Mr Harrington’s complaints were at least one of the real, genuine or true reasons for being subjected to the treatment he alleges he suffered by way of victimisation. Nor despite being provided with the opportunity to make further submissions has Mr Harrington been able to identify any other evidence or material which would be likely to satisfy this element of his claim.

175. The statements by nursing staff and correction officers even if established do not constitute evidence of the actual “real”, “genuine” or “true” reason for the treatment as opposed to being a third parties’ view. Accordingly, it is the Tribunal’s view that without more evidence the fourth element, namely that the detriment on the ground of the allegation of a contravention of the AD Act is not reasonably arguable.

176. It follows from the Tribunal’s consideration of this aspect of the application that there is a high degree of certainty that Mr Harrington’s complaint of victimisation will not succeed. Accordingly the Tribunal finds that the claim for victimisation is lacking in substance within the meaning of s 55(1)(b) of the NCAT Act and should be dismissed.

Whether there has been a want of prosecution

177. The second ground for CSNSW’s application under s 55 of the NCAT Act is that there has been a failure to prosecute the proceedings under s 55(1)(d).

178. The Tribunal has made reference to the guiding principle contained in s 36(1) of the NCAT Act and the parties’ duty to co-operate to give effect to the guiding principle under s 36(3).

179. As CSNSW has submitted, the scope of the Tribunal’s power in s 55(1)(d) must be determined in accordance with the “guiding principle” and the general legislative context; see Braiding at [18] – [22] referring to Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. The general legislative context is that provided by the operation of the AD Act. There are no rigid rules and the Tribunal should undertake a “balancing exercise, in the course of which a variety of factors may be considered”; Dank v Cronulla Sutherland District Rugby League Football Club [2014] NSWCA 288 at [103]; Witten v Lombard Australia Pty Ltd (1968) 88 WN (Pt 1) (NSW) 405 at [412].

180. Simpson J reviewed the considerations relevant to an application to dismiss the proceedings for want of prosecution in Hoser v Hartcher [1999] NSWSC 527 at [14] – [30]. They include the length of delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party.

181. CSNSW has submitted that because the applicant was not in a position to proceed on 27 April 2016 and had then failed to file written submissions in accordance with the directions it is appropriate that the Tribunal dismiss the proceedings for want of prosecution.

182. It is evident from the Tribunal’s file that Mr Harrington was made aware at the directions hearing on 27 January 2016 which he attended by telephone that the proceedings would be listed upon CSNSW’s summary dismissal application. He was served with CSNSW’s submissions and served his submissions in response. Having been released from custody on 21 April 2016, Mr Harrington did not appear in person at the hearing of CSNSW’s application on 27 April 2016. He did appear by telephone.

183. As has been indicated Mr Harrington said that he intended to be present at the hearing in person but was informed by his Parole Officer that it was a condition of his parole that he could not travel into neighbouring shires. He was unsure whether he could accordingly travel by car. He wished to obtain legal advice about the application which he said was something he was unable to do in custody and file submissions.

184. The Tribunal was satisfied that Mr Harrington was not in a position to proceed because of this change of circumstances. His application was allowed and directions were made 27 April 2016 to give him an opportunity to file further submissions with CSNSW’s application could be determined on the papers. Mr Harrington’s non-appearance in person was overtaken by the adjournment and orders made. The fact of non-compliance with a direction which provided for the filing and service of any further submissions [emphasis added] is not conclusive of any want of prosecution by Mr Harrington. He was able to rely on the submissions which he had already filed.

185. Further directions were made by the Tribunal in the letter to the parties from the Divisional Registrar on 5 July 2016 upon CSNSW’s application to include the supplementary ground of want of prosecution in its application for dismissal. Mr Harrington was to file and serve any further submission limited to the making and content of the supplementary application on or before 13 July 2016 [emphasis added]. He did not file or serve any submissions. Again, that is not conclusive of any want of prosecution of the matter, merely that Mr Harrington had determined not to make any submission in respect of the supplementary application by CSNSW. In both instances, the directions which were made were permissive rather than mandatory and if Mr Harrington elected not to put on any further submissions the ultimate hearing would proceed in their absence.

186. CSNSW said that the length of delay has been considerable, the matter originally being listed for hearing by Senior Member Connolly on 27 January 2016. It submitted that Mr Harrington has had three months to prepare for hearing and an additional month to seek legal advice and file written submissions.

187. Nor in the Tribunal’s view do those submissions make out the application for dismissal on the ground of want of prosecution. On 27 January 2016, CSNSW’s application was listed by the Tribunal for hearing on 27 April 2016 and a timetable was provided allowing for the parties to put on submissions which occurred. The delay, at least in respect of the application for dismissal, arises only upon Mr Harrington’s inability to conduct the hearing in person on 27 April 2016 by reason of unresolved travel restrictions and his desire to obtain legal advice having been released from custody only six days previously. However, the application proceeded on the papers and no further personal appearances were required.

188. CSNSW has also submitted that there has been no communication from Mr Harrington including any explanation or excuse for the delay in the filing of his submissions. In the Tribunal’s view the fact of no communication including by way of explanation or excuse for not filing any submissions does not ground the application where the filing of the submissions was not mandatory.

189. CSNSW further submits that it continues to suffer prejudice as a result of Mr Harrington’s failure to proceed with his application. It says that this is because the alleged discrimination occurred between 27 May 2013 to 25 May 2014, that it has already incurred costs in preparing for a hearing which did not proceed upon Mr Harrington’s application for adjournment and that it is entitled to certainty in its operations including in respect of whether or not the activity of urine testing is a “service” within the contemplation of s 49M of the AD Act

190. The Tribunal accepts that delay in the conclusion of Mr Harrington’s proceedings leaves some uncertainty in the operations of CSNSW with respect to whether when requiring a urine sample under clause 150 it is providing goods and services. However, in the Tribunal’s view there is no evidence that Mr Harrington has failed to prosecute the proceedings in a way which was prolonged, unexplained or inexcusable.

191. Mr Harrington progressed the matter by his application for Legal Aid and his application for the review of its refusal. He has made an application for production of documents by the Department of Justice. He has given notice of the documents and witnesses he intends to call and filed lengthy submissions (twenty handwritten pages) on CSNSW’s application.

192. Mr Harrington did fail to comply with initial directions made on 9 September 2015. However, those directions were subsequently vacated for the reason that Mr Harrington was seeking to review his Legal Aid application. He is not in default of any directions. The proceedings were then overtaken by CSNSW’s application and amended application. The directions given for the filing of submissions were as the Tribunal has indicated permissive rather than mandatory. The non-filing and service of submissions by Mr Harrington cannot be said to be a failure to prosecute his claim. The costs incurred by CSNSW in preparing for the application were not increased upon the adjournment by reason that the matter proceeded on the papers.

193. In all the circumstances the Tribunal is not satisfied that there has been want of prosecution by Mr Harrington such as would ground CSNSW’s application under s 55(1)(d) and that part of its application is refused.

Conclusion

194. For the reasons identified:

1. CSNSW’s application that Mr Harrington’s claims of direct and indirect discrimination and victimisation be dismissed as lacking in substance is allowed.

2. CSNSW’s application that Mr Harrington’s claims of direct and indirect discrimination and victimisation be dismissed for want of prosecution is refused.

3. The complaint accordingly should be dismissed in whole.

Orders

1. The application is allowed in part.

2. The complaint is dismissed in whole.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 31 January 2017