Horner v West and ors (EOD)

[2008] NSWADTAP 3

Appeal Panel - Internal

CITATION:

Horner v West and ors (EOD) [2008] NSWADTAP 3

PARTIES:

APPELLANT
Paul Horner

FIRST RESPONDENT
Paul West

SECOND RESPONDENT
William Middleton

THIRD RESPONDENT
Darren Toomey

FOURTH RESPONDENT
Anthony Towney

FIFTH RESPONDENT
Gillian Edge

SIXTH RESPONDENT
Harry Cutmore

SEVENTH RESPONDENT
Douglas Hall

EIGHTH RESPONDENT
Jacqueline Kennedy

NINTH RESPONDENT
Commissioner of Police, New South Wales Police

FILE NUMBER:

079063

HEARING DATES:

15 November 2007

SUBMISSIONS CLOSED:

15 November 2007

 
DATE OF DECISION: 

24 January 2008

BEFORE:

Hennessy N - Magistrate (Deputy President)

MATTER FOR DECISION:

Preliminary matter

DECISION UNDER APPEAL:

West and ors v Commissioner of Police, New South Wales Police [2007] NSWADT 240

FILE NUMBER UNDER APPEAL:

071017

DATE OF DECISION UNDER APPEAL:

10/05/2007

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Bignell v New South Wales Casino Control Authority (EOD) [2001] NSWADTAP 41
Coulter v R [1988] HCA 3; (1988) 164 CLR 350
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397
Dixon v RNJ Sicame Pty Ltd and Anor [2002] NSWADT 154
Hanratty v Kempsey Shire Council [2002] NSWADT 232
Italiano v Carbone [2005] NSWCA 177 (unreported, 2 June 2005)
Johnson Tiles Pty Ltd v Esso Australia Co-op Co Ltd [1990] VR 355 at 364
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Spence v Roberts [2006] NSWADT 105

REPRESENTATION:

APPELLANT
A Hatcher, barrister

FIRST TO EIGHTH RESPONDENT
D Hillard, solicitor

NINTH RESPONDENT
K Kerr, solicitor

ORDERS:

Leave to appeal against the Tribunal’s decision to join Mr Horner as a party to the proceedings is refused.

REASONS FOR DECISION

Background

1 Mr Horner, a police officer, has appealed against a decision of the Tribunal joining him as a party to a complaint made under the Anti-Discrimination Act 1977 (AD Act). The complainants are eight Aboriginal police officers. The complaint relates to what they regard as a racist email. It is alleged that Mr Horner was the originator of the email, an allegation which he did not deny. When the President of the Anti-Discrimination Board referred the complaint to the Tribunal he characterised it is a complaint of race discrimination against the Commissioner of Police. At the first case conference the complainants said that they regarded it as a complaint of racial vilification as well and sought to join Mr Horner as a party to that complaint.

2 The Tribunal decided to hear the application to amend the complaint to add racial vilification and the application to join Mr Horner, “on the papers”, that is, without having an oral hearing: Administrative Decisions Tribunal Act 1997, (ADT Act) section 76. The complainants served Mr Horner with an application to join him as a party to the proceedings and he filed a submission in response. The Tribunal decided that it was not necessary to amend the complaint because an allegation of racial…