JA v State of New South Wales

[2003] NSWADT 272

CITATION:	JA v State of New South Wales [2003] NSWADT 272
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT JA RESPONDENT State of New South Wales
FILE NUMBER:	021075
HEARING DATES:	05/06/03
SUBMISSIONS CLOSED:	06/05/2003
DATE OF DECISION:	12/18/2003
BEFORE:	Hennessy N - Magistrate (Acting President); McDonald O - Member; Mooney L - Member
APPLICATION:	Age Discrimination - Accommodation - Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Crown Proceedings Act 1988 Mental Health Act 1990 Police Act 1990 Police Service Act 1990 Police Service Amendment (NSW Police) Act 2002 Supreme Court Rules 1970
CASES CITED:	Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 IW v City of Perth (1997) 191 CLR 1 Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 KB v Commissioner of Police, New South Wales Police Service [2002] NSWADT 30 Langley v Niland [1981] 2 NSWLR 104 LD v Voltime Pty Ltd (trading as Cronulla Hotel) [2000] NSWADT 95 LD v Voltime Pty Limited (trading as Cronulla Hotel) [2001] NSWADT 5 LD v Voltime Pty Ltd (trading as the Cronulla Hotel) (EOD) [2001] NSWADTAP 13 McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 Pannizutti v Trask (1987) 10 NSWLR 531 Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported) Rajski v Powell (1987) 11 NSWLR 522 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Waters v Public Transport Corporation (1991) 173 CLR 349 Wickstead v Browne (1992) 30 NSWLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT S Spartalis, counsel
ORDERS:	1 The application under s 111(1) is dismissed. ; 2 The matter is to be listed for further case conference on a date to be arranged by the Registry in consultation with the parties and the Tribunal.

1 On 16 July 2002, the Acting President of the Anti-Discrimination Board referred to the Tribunal several complaints by JA against the State of New South Wales (NSW Police). Although JA identified individual police officers in his complaint, the Acting President did not refer complaints against any individual officer to the Tribunal and no application has been made for the joinder of additional parties. Since the Police Service of NSW (or NSW Police as it is now known) has no legal personality (Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 at para 35, per Spigelman CJ), the correct respondent is the State of New South Wales. (See s 5 of the Crown Proceedings Act 1988.) The Acting President declined the complaints as vexatious pursuant to s 90(1) of the Anti-Discrimination Act 1977 (AD Act).

2 The purpose of the hearing on 5 June 2003 was to determine whether any or all of JA’s complaints should be dismissed under s 111(1) of the AD Act. That section states that:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

3 This matter was originally set down for hearing on 29 October 2002. On that day the matter was adjourned for hearing on 19 February 2003 and the costs were reserved. The hearing was re-scheduled for 19 February 2003 and JA was directed to file a statement setting out his allegations by 31 December 2002. On 16 December 2002, JA requested an extension of time to file his submissions. On 13 February 2003 JA provided the Tribunal with a medical report to the effect that he had been admitted to hospital on 5 February 2003 and was likely to remain as an inpatient for between four and six weeks. The hearing on 19 February was adjourned on that basis and rescheduled for 5 June 2003.

4 On 28 May 2003, JA spoke to staff at the Registry and advised that he would not be attending the hearing on 5 June until certain personal notes made public on the Tribunal’s website were removed. JA was apparently referring to the internet publication of previous decisions in which he was the applicant. Those decisions have not been removed from the Tribunal’s website but those decisions and the current decision have been anonymised because they contain sensitive personal information.

5 On 4 June 2003, JA spoke to staff at the Registry and again advised that he would not be attending the hearing. He provided a letter from Dr Roberto D’Angelo, consultant psychiatrist, which stated that JA “will be unfit to attend the Tribunal hearing on 5 June 2003.” That assertion was not supported by any other facts or opinions. After receiving a letter by facsimile from JA requesting an adjournment for a further six months, staff at the registry telephoned JA at the request of the Tribunal and JA agreed to participate in the hearing by phone.

The complaint

6 The basis of JA’s complaint can be found in correspondence from him to the President of the Anti-Discrimination Board dated 8 May 2001, 24 May 2001, 10 October 2001 (two letters) and 11 October 2001. In addition JA filed further supporting documentation and made oral submissions to the Tribunal. Any material received after 5 June 2003 has not been taken into account in this decision. The first letter of 10 October states that:

This is a complaint about David Massih of Cronulla police making false allegations that I am mental and further harassment I have received from him. More victimisation. I would like to complain the Police are not investigation (sic) assaults against myself and also false file making and that the Police do nothing about complaints against Police and in fact involved (sic) in this behaviour.

7 The second letter of 10 October state, in part, that:

This is a complaint harassment (sic) and victimisation from Cronulla police. The last assault on myself not being investigated 23/9/01. Todd Blanch not being interviewed about the assault on 7/11/2000 that leaves lasting scars on myself. The harassment from Police making out I am mental a drunk a assaulter of police lies not corrected on my files persecution and sexual harassment. Victimisation.

8 JA also alleged that police officers did not investigate his allegations of sexual harassment against staff employed in two different cafes. The complaints span the period from 8 November 2000 to 11 October 2001.

Alleged breaches of the AD Act

9 In the course of the hearing, JA elaborated on the incidents comprising his complaint. There are essentially six matters about which he complains. In brief, they are:

1. police officers failed to properly investigate his allegation that a person assaulted him on 7 November 2000; JA conceded that after he complained to the Commissioner of Police, the matter was investigated, but not to his satisfaction;

2. police officers failed to properly investigate his allegations of sexual harassment against staff at two cafes;

3. police officers failed to properly investigate allegations of harassing phone calls; JA admits that the person was charged with making the calls;

4. a police officer directed JA to leave a shopping centre because he was allegedly in breach of an Apprehended Violence Order (AVO);

5. a police officer stated in a report that he was “incoherent”; and

6. an AVO that JA obtained in relation to another person was allegedly not served on that person.

10 The Acting President of the Board interpreted this material as complaints against the State of New South Wales on the basis of assumed homosexuality in the provision of goods and services, assumed disability in the provision of goods and services, sexual harassment in the provision of goods and services, victimisation, serious homosexual vilification and aiding and abetting. It became apparent during the course of the hearing, that JA was not relying on sexual harassment, victimisation, homosexual vilification or “aiding and abetting.” The basis of his complaint was that the respondent had discriminated against him on the ground of disability or perceived disability in the provision of services and that they were vicariously liable for the conduct of police officers pursuant to s 53 of the AD Act.

Vexatious

11 The Acting President of the Anti-Discrimination Board declined JA’s complaint as vexatious under s 90(1). The respondent also submitted that the Tribunal should decline the complaint on that basis. Essentially the respondent’s submission was that the Acting President declined the complaints and that JA has not provided any new material which would justify a departure from that view.

12 The Tribunal’s role is to determine whether to dismiss a complaint under s 111(1) on the basis of the evidence and submissions before it. Despite any determination by the Acting President, the onus is on the respondent to satisfy the Tribunal that the complaint should be dismissed. Consequently, the fact that the Acting President came to a particular view is not relevant to the Tribunal’s decision.

13 The term “vexatious” has been interpreted by Professor Bernard Cairns in Australian Civil Procedure (5th edition, Law Book Co, 2002) as an allegation for the purpose of harassment. Cairns says, at 404 that “A pleading is therefore vexatious if it cannot succeed, or is put forward simply for the purpose of wasting time or for causing delay.” (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.) If an action has any hope of success it should not be struck out as vexatious. (Rajski v Powell (1987) 11 NSWLR 522.)

14 JA has lodged numerous complaints against the respondent and others to the Anti-Discrimination Board, the Ombudsman and other agencies. A medical report from Dr Clark dated 18 February 2003, tendered to the Tribunal, notes that Dr Eleazar had provided a certificate by which JA was detained under the Mental Health Act 1990. In that certificate Dr Eleazar stated that JA suffered paranoid thoughts about the police and members of the public and reported that he believed that others were harassing him. The report of Dr Thomas Clark dated 18 February 2003 concluded that JA:

. . .has an underlying personality which one would call a cyclothymic personality. However his mood is predominantly extrovert and hyperactive. There is no present evidence he suffers depressive spells although, looking at his history, he has experienced irritable desperate spells. . . As to formal findings of a “mental illness” meaning a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person, on my examination he did not show this.

15 The Macquarie Dictionary (3rd edition, Macquarie Library) defines “cyclothymia” as “the tendency toward alternating periods of elation and depression, which, in extreme, is manifested as manic-depressive psychosis.” Although it was not formally tendered in evidence, JA also provided the Tribunal with a copy of a medical opinion, with which he disagreed, from Dr Adrian Keller, Director, Division of Mental Health from The Sutherland Hospital, dated 4 February 2003. That report states that “It is my professional opinion that JA is likely to be currently suffering from a mental illness and that he may well represent a risk to himself and others.”

16 A fundamental question is whether JA’s complaint is founded in reality or is based on paranoid or other delusions. The respondent did not contend that the circumstances about which JA complained did not occur. Although there is some medical evidence to suggest that the complainant is suffering from a mental illness, that evidence is not sufficiently probative for the Tribunal to conclude that the complaints are not based on reality. Apart from the content of the complaints themselves, it is obvious that JA has great difficulty articulating and prosecuting his complaints. That difficulty may or may not be the result of a disability.

17 On the basis of all the evidence we are not satisfied that JA has complained about the respondent for the purpose of harassment, that is “vexatiously” or to waste time or cause delay. While he has made numerous complaints and many have previously been found by the Tribunal to be lacking in substance, that does not necessarily mean that this complaint is vexatious. (See LD v Voltime Pty Ltd (trading as Cronulla Hotel) [2000] NSWADT 95; LD v Voltime Pty Limited (trading as Cronulla Hotel) [2001] NSWADT 5; LD v Voltime Pty Ltd (trading as the Cronulla Hotel) (EOD) [2001] NSWADTAP 13; and KB v Commissioner of Police, New South Wales Police Service [2002] NSWADT 30.)

Lacking in substance

18 A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is lacking in substance. That term was interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that “lacking in substance” relates to the “insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all.” However, Hunt J added that the words “for any other reason” include the reason that the complaint does not disclose a contravention of the Act. A complaint, which relied on a ground not covered by the AD Act or, to use Hunt J’s example, a complaint that fell within one of the exceptions in the Act, would not disclose a contravention.

19 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff’s case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Development Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie’s Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that “The test to be applied has variously been described as whether the matter is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’, ‘so manifestly faulty that it does not admit of argument’, one which ‘the court is satisfied cannot succeed’, one where ‘under no possibility can there be a good cause of action’, or one which ‘would involve useless expense’”. (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.)

Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1).

20 The commonly-stated test of ‘taking the evidence at its highest’ needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken ‘at its highest’ may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent’s witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

21 Wilson J in Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 at p.78, 900 rejected the onerous test of “no real prospect of success.” His Honour said at “A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.” That test has been adopted by the Federal Court in Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54).

22 However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J’s approach in Assal because in those cases the “complainants had had their day before the Commission.” In McGlade, the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that “there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.” We agree with and adopt Ormiston JA’s approach.

23 The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party’s request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant’s version of events, the application would most usually be made only after the complainant’s case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent’s case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal’s jurisdiction – one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act – then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost.

Relevant legislation

24 Each of the six allegations made by JA was made on the ground of disability or presumed disability in the provision of goods and services. Section 49B(1)(a) of the AD Act states that:

A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability.

25 JA did not claim that the respondent had discriminated against him pursuant to s 49B(1)(b) (“indirect discrimination”).

26 JA did not nominate the substantive provision on which he relied, but according to the report of the Acting President, the alleged discrimination relates to the provision of goods and services. Section 49M states that:

(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.

27 In order to substantiate a complaint of direct disability discrimination in the provision of services against the respondent, JA has to prove the following matters:

1. JA has a disability or is presumed to have a disability within the meaning of the AD Act.

2. The respondent is providing services to JA.

3. The respondent has refused to provide JA with services or has provided services on certain terms.

4. In refusing to provide services or in providing them on certain terms the respondent has treated JA less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treats or would treat a person who does not have a disability or is not presumed to have a disability.

5. The respondent's refusal to provide JA with services, or its provision of services on certain terms is on the ground of JA’s disability or presumed disability.

28 Disability or perceived disability. It was not in dispute that JA has a disability. JA tendered medical evidence to the effect that he has a personality disorder, namely a cyclothymic personality. Such a disorder comes within the definition of “disability” in s 4 of the Anti-Discrimination Act 1977, namely “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.” JA also alleged that the respondent perceives that he has a mental illness.

29 Provision of services. The next question is whether the incidents about which JA complained could amount to either a refusal by the respondent to provide JA with services or to the provision of services on certain terms. The incidents involve alleged failure to properly investigate certain allegations; being directed to leave a shopping centre because he was allegedly in breach of an Apprehended Violence Order (AVO); a statement that he was “incoherent”; and an alleged failure to serve an AVO on the victim.

30 In the case of Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 the Tribunal referred three questions of law to the Supreme Court under s 118 of the Administrative Decisions Tribunal Act 1997 (ADT Act). One of those questions is relevant to these proceedings. It was:

Whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr. Russell amounted to the provision of a "service" within the meaning of section 19 of the Anti-Discrimination Act, and if so whether such a "service" within the section was provided by the appellants;

31 Sully J’s answer to that question was as follows:

No; but the subsequent failure of those police officers to afford Mr. Russell the protection to which he was entitled in terms of section 6(3)(b) of the Police Service Act was conduct of the kind contemplated by section 19(a) of the Anti-Discrimination Act.

32 Section 19(a) of the AD Act makes it unlawful for a person who provides goods or services to discriminate against another person on the ground of race by refusing to provide the person with those goods or services. Although Russell’s case concerned the race discrimination provisions of the AD Act, the wording in the disability discrimination provisions is virtually identical. Sully J concluded that the Police Service (as it then was) is a public authority as defined in s 4(1)(e) of the AD Act. That provision includes in the definition of services “services provided by a . . . public authority”. His Honour set out the provisions of s 6 and 7 of the Police Service Act 1990. That Act has since been amended by the Police Service Amendment (NSW Police) Act 2002. The relevant Act is now the Police Act 1990, which establishes NSW Police. The provisions of ss 6 and 7 are in the same terms as the Police Service Act 1990. In particular under s 6(2)(a) of the Police Act 1990, one of the functions of NSW Police is to “provide police services for New South Wales.” “Police services” are defined in s 6(3)(a) and (b) to include “(a) services by way of prevention and detection of crime and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way . . .”

33 Sully J concluded at [43] and [44] that:

It seems to me that the Police Service of New South Wales, as established by section 4 of the Police Service Act, has by reason of sections 6 and 7 of that Act, duties, functions and characteristics sufficient to establish it as a public authority in the sense discussed by the High Court. The Police Service of New South Wales cannot operate, relevantly, except by and through police officers who are serving members of the Service. It seems to me to follow that services provided by such serving police officers are services provided by a public authority in the sense contemplated by the Anti-Discrimination Act.

A correct assessment of the conduct of the individual police officers in the course of their pursuit and arrest of the late Mr. Russell is in my opinion as follows:

[1] The police officers who took part in the pursuit of Mr. Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act .

[2] The police who took part in the arrest of the late Mr. Russell were also thereby providing to the community at large services of those two kinds.

[3] As soon as the late Mr. Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr. Russell was subsequently handled; or who witnessed the way in which Mr. Russell was handled; became thereupon charged with a public duty to provide to the late Mr. Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, “whether arising from criminal acts or in any other way”.

34 Although the Supreme Court decision went on appeal to the Court of Appeal, that Court did not deal with the issue of the definition of “services.” (Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 (20 August 2002)).

35 In IW v City of Perth (1997) 191 CLR 1 at 16-17 Brennan CJ and McHugh J said that: "In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides". The identification of the relevant services is a question of fact. (Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J at 404.) It is apparent from Sully J’s decision, that a police officer will be providing “services by way of prevention and detection of crime” to members of the public when investigating an allegation that a criminal offence has been committed. But they are not providing services to an individual suspect until after that person has been arrested. The question at issue in these proceedings, which was not answered directly by Sully J, is whether, when investigating a matter, police officers are providing services to the alleged victim of a crime, or merely to the public at large. Gummow J commented on an analogous situation in IW v City of Perth where the issue was whether the City of Perth unlawfully discriminated against an association by refusing planning approval for the use of premises for persons infected with the Human Immunodeficiency Virus (HIV). His Honour said that:

There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions (191 CLR 1 at 44).

36 This reasoning applies equally to the circumstances of this case. Although individual police officers, when preventing and detecting crime, are providing a service to the community as a whole, they are, at the same time, providing a service to the individual who requests them to perform those functions. JA maintains that his allegations against various people were either not investigated or were investigated inadequately. In my view it is not “unsustainable” or “unarguable” that the respondent was either failing to provide JA with a service or providing a service on certain terms.

37 The next incident about which JA complained was that he was harassed by police officers and asked to leave a shopping centre because he was in breach of an AVO. Sully J’s analysis in Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745, suggests that when police officers are questioning, pursuing or arresting a person, they are not providing services to that person. It is only at the point where police officers arrest a person that they are providing that person with a “service” namely protecting them from injury or death and protecting their property from damage. On the basis of this Supreme Court authority it may be difficult for JA to establish that the respondent was providing him with a service on that day, but it cannot be said that such a proposition is unsustainable or unarguable.

38 The statement that JA was “incoherent” was made in a report on the COPS system (Event Ref No: E 1150109). That report records that a person contacted police about JA allegedly breaching an AVO. The report states in part that:

About 2.40 pm on 10/05/01 foot patrol police spoke to [JA] in the Strawberry Fair shop in the Cronulla Mall. [JA] was served with an interim AVO which was applied for and granted at SLC on 07/05/01. The AVO was read and explained to [JA] and he was given a copy of the AVO. It was later explained to [JA] in the presence of his parents who were also given a copy of the AVO. [JA] was then escorted at his request, out of the Mall. The matter is listed for hearing at SLC on 30/05/01. AVO served without incident, however [JA] continually became emotionally upset and was very argumentative and at times was incoherrant (sic).

39 In accordance with Sully J’s reasoning in Russell, JA may find it difficult to establish that the respondent was providing him with a service when writing this report. However, that matter cannot be said to be unarguable or unsustainable.

40 The final incident about which JA complained was that an AVO that he obtained in relation to another person was not served on that person. As with the two incidents referred to above, the proposition that the respondent was providing JA with a service in relation to this incident is not unarguable or unsustainable.

41 Refusal to provide goods or services or provision of those services on certain terms. The third element, which JA must prove is that the respondent, refused to provide him with services or provided those services on certain terms. It is apparent from JA’s allegations that if the conduct about which he complains does amount to the provision of a service, then he is alleging that the service was either not provided or was provided on certain unfavourable terms.

42 Differential treatment and causation. The final two elements of JA’s complaint are firstly that he was treated less favourably than the respondent treats or would treat a person without a disability or who was not perceived to have a disability and that the treatment was “on the ground” of JA’s disability or perceived disability. Extreme caution must be exercised before dismissing a complaint under s 111(1) on the basis that the “differential treatment” or “causation” elements are unarguable or unsustainable. The identification of a real or hypothetical comparator and the reason for the respondent’s conduct are likely to be dependent, at least in part, on the evidence in the possession of the respondent. Consequently any final view about differential treatment or causation will often need to await the testing of the complainant’s and the respondent’s evidence. (See Wickstead v Browne (1992) 30 NSWLR 1 for the application of this principle in relation to Supreme Court proceedings). In this case, the elements of differential treatment and causation are not unsustainable or unarguable.

Orders

1. The application under s 111(1) is dismissed.

2. The matter is to be listed for further case conference on a date to be arranged by the Registry in consultation with the parties and the Tribunal.