Jamal v NSW Police Commissioner

[2016] NSWSC 658

Supreme Court

New South Wales

Medium Neutral Citation:

Jamal v NSW Police Commissioner [2016] NSWSC 658

Hearing dates:

20 April 2016

Date of orders:

26 May 2016

Decision date:

26 May 2016

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) The second and third named respondents are removed as respondents from these proceedings.

 

(2) The amended summons filed 17 April 2015 is dismissed.

 (3) The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decisions of the Civil and Administrative Tribunal of New South Wales refusing grant of leave and an adjournment – self-represented plaintiff alleged discrimination by members of the NSW Police Force – Principal Member of the Tribunal qualified to make decision – no denial of procedural fairness – no error of law established – no error in plaintiff naming NSW Police Force as defendant

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Amendment Act 2013 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Jamal v Director of Public Prosecutions [2013] NSWCA 355
Jamal v State of NSW (NSW Police Force) [2013] NSWADT 168
Jamal v NSW Police Force (NCAT, 14 April 2015, unrep)
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR

Category:

Principal judgment

Parties:

Jon Jamal (Plaintiff)
NSW Police Commissioner (Defendant)

Representation:

Jon Jamal (Plaintiff in person)
J Mattson (Defendant)

  Solicitors:
Bartier Perry (Defendant)

File Number(s):

2014/369907

Publication restriction:

Nil

Judgment

1. HER HONOUR: In these proceedings the plaintiff seeks a judicial review of two decisions of the NSW Civil and Administrative Tribunal (“NCAT”) made on 14 April 2015. The first is a decision to refuse an application for an adjournment and the second is a decision to refuse the plaintiff leave to proceed with his discrimination complaint dated 23 August 2014 to the Anti-Discrimination Board alleging race and sex discrimination (AB 1-24). The original summons was filed on 8 August 2014 (AB 354).

2. The plaintiff is Jon Jamal. In his amended summons, filed 17 April 2015, Mr Jamal has named the first respondent as NSW Police Commissioner (“the Commissioner”), the second respondent as A/Commander Eastern Suburbs Mr Christopher Stiles and the third respondent as JW Box. In his original summons Mr Jamal named the respondent “State of NSW (NSW Police Force)”. The plaintiff was self represented. He did not have an interpreter. Mr Mattson, solicitor, appeared for the defendant. The plaintiff was articulate. There were only a few occasions where I was unable to understand what he was saying so I asked him to repeat what he said. I was then able to understand what he was saying. I have carefully read the documents in the Appeal Book, including the transcript of the proceedings before Principal Member Patten on 14 April 2014, and the defendant’s court bundle.

3. This matter originally came before me for hearing on 30 October 2015. I granted an adjournment of the hearing to 20 April 2016. On 6 November 2015, the NSW Police Commissioner filed a notice of motion seeking that the second and third respondents be removed as parties to these proceedings. (N/M [1] and [2]). He also sought an order to rely upon certain documents (N/M [3]). I made an order in accordance with paragraph 3 of the notice of motion and will refer to the orders sought in paragraphs 1 and 2 later in this judgment.

4. From the amended summons, the plaintiff’s complaints can be summarised as follows:

1.   That the Principal Member was not qualified to make the decisions;

2.   That the Principal Member was biased and misled;

3.   That the Principal Member contravened the Anti-Discrimination Act 1977 (NSW);

4.   That Mr Jamal was denied procedural fairness by the Principal Member;

5.   That there was an error of law by the Principal Member in giving written reasons outside the 28 day timeframe; and

6.   The wrong respondent is named.

5. There is some overlap in these grounds of review.

6. The gravamen of Mr Jamal’s complaints is that he has not been able to see his children for five years, nor has he been permitted to speak to them by telephone or via the internet. Mr Jamal believes there has been a miscarriage of justice and the Police have refused to investigate his complaints on the grounds of either his sex or of his race.

Background

7. The plaintiff and his ex-wife have three children. In 2011 they had separated but were living in the same house.

8. In February 2011, the plaintiff’s ex-wife travelled to Egypt by herself to see her family. The plaintiff also went to Egypt with the children some weeks later.

9. On 27 April 2011, the plaintiff’s ex-wife returned to Australia and stayed with a friend. On 2 May 2011, she reported to police at Waverley that the plaintiff had assaulted her between 1 June 2006 and 1 January 2007. Constable Semaan who, like the plaintiff and his ex-wife, speaks Arabic, was the officer primarily responsible for dealing with these allegations of domestic violence.

10. On 4 May 2011, Mr Jamal and his children returned to Australia. Six days later police removed the plaintiff’s children from school and placed them with their mother in a women’s refuge. On behalf of the plaintiff’s ex-wife, police applied to the Local Court for a provisional Apprehended Domestic Violence Order to prevent the plaintiff from approaching or contacting his ex-wife or their children. On 10 May 2011 that order was granted.

11. On 14 May 2011, the plaintiff’s son broke his leg. His ex-wife says that it happened when he fell from some play equipment. The plaintiff did not and still does not agree and wanted police to investigate the circumstances of that injury. Mr Jamal asserted and continues to assert that Constable Semaan refused to investigate his allegation that his wife, or someone else at the women’s refuge where she and his three children were staying, deliberately broke his son’s leg as a punishment.

12. On 31 May 2011, the plaintiff was arrested and charged with common assault upon his ex-wife. On 10 November 2011, the Local Court found the plaintiff guilty. He appealed to the District Court against his conviction.

13. On 1 June 2012, that appeal was dismissed. On 29 June 2012, the plaintiff appealed to the Supreme Court.

14. On 2 October 2013, the plaintiff’s appeal was heard by the Court of Appeal. On 25 October 2013, the Court of Appeal handed down its decision. The Court of Appeal dismissed the plaintiff’s third amended summons and further amended summons. The plaintiff was directed to file and serve short written submissions by 8 November 2013 on the issue of whether the proceedings should be remitted to the District Court for him to be dealt with under s 97 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

15. On 10 December 2013, the Court of Appeal, on the papers, handed down its decision of remittal. As the Director of Public Prosecutions no longer sought an order for remittal, the Court of Appeal made no further orders.

Anti-Discrimination Board

16. On 8 March 2012, the plaintiff lodged a complaint to the Anti-Discrimination Board against the NSW Police Force, alleging discrimination on the basis of race and sex. The Anti-Discrimination Board referred the complaint to the then Equal Opportunity Division of the Administrative Decisions Tribunal for hearing.

17. On 9 and 10 May 2013, the Tribunal, constituted by the Deputy President, Magistrate Hennessy, and two non-judicial members, J Schneeweiss and A Lowe, conducted a hearing.

18. On 29 July 2013, the Administrative Decisions Tribunal handed down its decision, dismissing the complaints: Jamal v State of NSW (NSW Police Force) [2013] NSWADT 168. So far as his son’s broken leg is concerned at [10] the Tribunal stated:

“10   The broken leg allegation was one of Mr Jamal’s main concerns. We accept that determining whether to investigate such an allegation constitutes a “service”. But Mr Jamal has not proved the differential treatment” or “causation” elements of direct race or sex discrimination. The only reasons police refused to investigate was because there was no probative evidence supporting Mr Jamal’s allegation. Statements from his ex-wife and hospital records indicate that the child broke his leg when he fell from some play equipment. Mr Jamal did not provide police officers with any persuasive evidence to contradict that version.”

19. On 13 August 2013, the plaintiff lodged a notice of appeal under s 112 of the Administrative Decisions Tribunal Act 1997 (NSW) to an Appeal Panel of the Tribunal. (The Administrative Decisions TribunalAct has since been renamed the Administrative Decisions Review Act 1997 (NSW), provisions relating to the Tribunal have been repealed and the function of conducting reviews transferred to the Civil and Administrative Tribunal: Civil and Administrative Tribunal Amendment Act 2013 (NSW), Sch 2.) That notice of appeal alleged errors of law and sought leave to extend the appeal to the merits of the Tribunal’s decision.

20. On 25 November 2013, the Appeal Panel, constituted by Deputy President Patten, Judicial Member Scahill and J Newman delivered the decision of the Appeal Panel. So far as the appeal related to questions of law, it was dismissed. The Appeal Panel then provided the plaintiff with an opportunity to seek leave to extend the appeal to deal with the merits of the decision of the Equal Opportunity Division. Having heard the submissions of the parties, the Appeal Panel dismissed the application to appeal with respect to the merits.

21. On 26 November 2013, although the plaintiff had been present when the Appeal Panel gave its decisions and reasons, the Registrar of the Tribunal sent a notice to the plaintiff advising that the Appeal Panel had, on the previous day, made an order dismissing the appeal. The notice stated that the plaintiff might request the Tribunal to give written reasons for its decision. Such a request was made and complied with by sending the plaintiff, on 18 December 2013, a transcript of the oral reasons delivered by the Tribunal, in accordance with s 89(4) of the Administrative Decisions Tribunal Act.

22. A right of appeal was available, on a question of law, against any decision of the Appeal Panel: Administrative Decisions Tribunal Act, s 119(1). As the decision of the Appeal Panel was a final decision, no leave was required: Administrative Decisions Tribunal Act, s 119(1A).

23. On 13 January 2014, the plaintiff filed notice of intention to appeal in the Court of Appeal. On 21 March 2014, the plaintiff filed a summons seeking leave to appeal.

24. On 18 June 2014, the matter was heard by the Court of Appeal. On 27 June 2014, the Court of Appeal handed down its judgment. The plaintiff’s application to extend time within which to file a notice of appeal was dismissed and the plaintiff’s summons seeking leave to appeal was struck out on the basis that it has not been filed and served timeously.

25. The plaintiff filed an application in the High Court for special leave to appeal the decision of the Court of Appeal. On 11 December 2014, the High Court dismissed the plaintiff’s application for special leave to appeal.

26. On 23 August 2013, the Anti-Discrimination Board received a second complaint from Mr Jamal “against the NSW Commissioner of police – “NSW Police Force”.” (DCB, Tab 9, 180). He alleged that he had been discriminated against on the ground of sex and race in the provision of goods and services. The ADB declined Mr Jamal’s complaint on the basis that Mr Jamal had failed to demonstrate his claim and the evidence did not support his assertions.

The Civil and Administrative Tribunal (often referred to as NCAT)

27. I shall briefly outline the practice and procedure of the Civil and Administrative Tribunal Act 2013 (NSW).

28. Sections 36, 38, 61 and 62 of the Civil and Administrative Tribunal Act read:

“36   Guiding principle to be applied to practice and procedure

(1)   The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)   The Tribunal must seek to give effect to the guiding principle when it:

(a)   exercises any power given to it by this Act or the procedural rules, or

(b)   interprets any provision of this Act or the procedural rules.

(3)   Each of the following persons 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 processes of the Tribunal and to comply with directions and orders of the Tribunal:

(a)   a party to proceedings in the Tribunal,

(b)   an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)   In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5)   However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

38   Procedure of Tribunal generally

(1)   The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)   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.

(3)   Despite subsection (2):

(a)   the Tribunal must observe the rules of evidence in:

(i)   proceedings in exercise of its enforcement jurisdiction, and

(ii)   proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

(4)   The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5)   The Tribunal is to take such measures as are reasonably practicable:

(a)   to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)   if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)   to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6)   The Tribunal:

(a)   is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b)   may require evidence or argument to be presented orally or in writing, and

(c)   in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

61   When decision determining proceedings takes effect

A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.

…

62   Tribunal to give notice of decision and provide written reasons on request

(1)   The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2)   Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(3)   A written statement of reasons for the purposes of this section must set out the following:

(a)   the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)   the Tribunal’s understanding of the applicable law,

(c)   the reasoning processes that lead the Tribunal to the conclusions it made.

(4)   Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.”

29. Also relevant here is s 96 of the Anti-Discrimination Act 1977 (NSW). It relevantly reads

“96   Leave of Tribunal required for inquiry into certain matters

(1)   A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1), but not including a complaint to which section 91 (2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

…”

30. Section 93A provides that a complainant may require the President of the Anti-Discrimination Board to refer the complaint to the NCAT and the President must comply with a notice to that effect

31. I shall briefly set out the two decisions that are the subject of judicial review.

NCAT proceedings – 14 April 2014

32. Mr Jamal lodged an application under s 96 of the Anti-Discrimination Act seeking leave to commence NCAT proceedings. On 14 April 2014, the matter was heard. Mr Jamal was self represented. He did not have an interpreter present at the hearing.

(1)   Adjournment decision

33. At the hearing, Mr Jamal made an oral application to adjourn the proceedings. In his ex tempore reasons dated 14 April 2014 in relation to the adjournment application, the Principal Member stated:

“Mr Jamal asserts that he did not receive that letter but he has not put on evidence to that effect. He certainly became aware of the proceedings when he was served a few days ago with outline submissions by the respondent who is represented before me by Ms F Howell. In his appearance today Mr Jamal seeks an adjournment on the basis that English is not his first language and he is not particularly proficient in it and on the basis that he wishes to have legal representation. It is true that he has some difficulty with the English language but so far as I am concerned he has been able to make himself understood and he seems to have an appreciation of what is occurring. Moreover, there were previous proceedings between Mr Jamal and the New South Wales Police Force in the Administrative Decisions Tribunal which involved a two day hearing in May last year during which Mr Jamal represented himself.

Significantly for the most part, as it seems to me, the issues which Mr Jamal raised in his present complaint to the President of the Anti-Discrimination Board were the same issues as were the subject of the previous proceedings which were found adversely to him. When I asked Mr Jamal today if he could articulate what exactly was his complaint about the New South Wales Police Force in the present proceedings he claimed to be unable to do so without legal advice, a curious assertion in view of the fact that the complaint that he relies on today is the complaint that he made to the President of the Anti-Discrimination Board.

If there was some arguable merit in Mr Jamal's complaint then I think I would be persuaded that he should be given the opportunity to seek legal advice. But I have read the papers which are voluminous and it appears to me that there is no arguable basis upon which a claim for unlawful discrimination under the Anti-Discrimination Act could succeed.

He complains that police officers to whom he made a complaint in June last year at Waverley Police Station and who interviewed him at some length refused to take the matter further on the grounds either of his sex or of his race.

On the face of it there is absolutely no evidence of either of those propositions but, on the contrary, the conclusion of the police that Mr Jamal did not provide sufficient credible evidence to warrant the matter being taken further seems undeniable.

As I have indicated, in any event for the most part the issues seem to have been decided against Mr Jamal in the previous decision of Administrative Decisions Tribunal given on 29 July 2013. On that basis I can see no arguable reason why Mr Jamal should be entitled to take proceedings in this Tribunal and put the community to the expense and inconvenience which that would involve. For that reason I refuse Mr Jamal’s application for an adjournment.”

34. Importantly, Principal Member Patten made a finding of fact that Mr Jamal was notified of the proceedings by letter correctly addressed to him by the Tribunal dated 21 March 2014 (J 1).

(2)   Leave decision

35. In his ex tempore reasons dated 14 April 2014, Principal Member Patten stated that after he had read the President’s file and heard submissions from Mr Jamal, he was satisfied that there was no evidence of unlawful discrimination within the Anti-Discrimination Act and it would be futile to allow Mr Jamal to commence NCAT proceedings. Leave was refused.

36. I turn now to consider Mr Jamal’s grounds of judicial review.

(a)   Principal Member not qualified

37. Mr Jamal submitted that Mr David Patten is not qualified to make a decision in relation to or review his case as he is a Tribunal Member of the Equal Opportunity Division, not a Principal Member.

38. In the Appeal Book, there is a document entitled “Appendix 2: Tribunal Members” extracted from the NCAT 2014 Annual Report. The beginning of Appendix 2 reads:

“As at 30 June 2014, the Tribunal’s membership, in addition to the President and the five Deputy Presidents, comprised 260 Members including Principal Members, Senior Members, and General Members.”

David Patten’s name appears under the heading “Tribunal Membership” (AB 307-9).

39. The schedule does not differentiate between Principal Members and Tribunal Members. It does not specify which members are also Principal Members.

40. A file note by Felicity Howell, lawyer acting for the respondent (Aff, 18/9/2014 - Annexure B), records a telephone conversation between her and Ms Green from NCAT that took place on 10 September 2014 in which Ms Green stated:

“I’m just ringing in response to your letter in the matter of Jamal and NSW Police Force.

Just ringing to let you know that Principal Member Patten did not hold an appointment as a judge on the date of the decision. He would have been a Principal Member of the Tribunal.”

41. As a representative of NCAT has confirmed that Mr Patten was the Principal Member in Jamal v NSW Police Force (NCAT, 14 April 2015, unrep), I am satisfied that he was a Principal Member of the Tribunal and he was qualified to make the two decisions on 14 April 2014. This ground of judicial review fails.

(b)   The Tribunal Member was biased and misled

42. Mr Jamal submitted that Principal Member was biased because he “was misled by the illegal plaintiff.” According to Mr Jamal, the Principal Member did not check his documents properly.

43. Mr Jamal referred to the reasons for decision of the Administrative Decisions Tribunal, Equal Opportunity Division dated 29 July 2013 at [12] where it stated:

“12   … We have not taken into account anything that occurred outside the complaint period which is 10 May 2011 to 7 October 2011. In particular, we have not taken into account any new allegations made by Mr Jamal or any further evidence he says he has in support of the broken leg allegation.” (My emphasis).

44. Mr Jamal submitted that Mr Patten was misled into thinking that Mr Jamal was seeking leave in relation to a complaint spanning the period between 10 May 2011 to 7 October 2011, the time period covered in the earlier decision, but he should have considered Mr Jamal’s complaints to the Police that were lodged later in time and included those referring to periods of time beyond 7 October 2011. However, in his reasons for not granting an adjournment the Principal Member stated that on the face of it there is absolutely no evidence that he has a claim for unlawful discrimination in relation to the complaint made “June last year” (being June 2013) made to Waverley Police Station (my emphasis). The Principal Member stated that the conclusion of the Police that Mr Jamal did not provide sufficient credible evidence to warrant the matter being taken further seems undeniable and that in any event for the most part the issues seem to have been decided against Mr Jamal in the previous decision of Administrative Decisions Tribunal given on 29 July 2013. In other words the Tribunal Member was saying that the current complaint dated June 2013 essentially covered the same issues raised in the earlier complaint.

45. From the above, it is clear that the Principal Member understood that Mr Jamal was referring to a further complaint he had made to the Police in June 2013. In that regard the Principal Member was not misled.

46. The NSW Police Commissioner submitted that there is no basis to assert that the Principal Member was actually biased in making the decisions, let alone that a fair minded lay observer may entertain a reasonable apprehension of bias that the Principal Member would not bring an impartial and unprejudiced mind to the resolution of the issues: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [6]. In my view the Principal Member gave Mr Jamal an opportunity to be heard and a fair minded lay observer would not have entertained a reasonable apprehension of bias that the Principal Member would not bring an impartial and unprejudiced mind to the resolution of the issues in his decisions dated 14 June 2013. This ground of judicial review fails.

(c)   Contravention of the Anti-Discrimination Act

47. So far as this argument is concerned, as I understand it, Mr Jamal submitted that there is only one Principal Member. According to Mr Jamal, by law there is a difference: a Member is a Member and a Principal Member is a Principal Member. He says that if Mr Patten is qualified to make decisions, he should be an Australian lawyer of at least seven years’ standing, or otherwise there should have been one judge and one member to make that order for leave. According to Mr Jamal, Mr David Patten did not show he was a lawyer or whether he was a Principal Member or otherwise.

48. According to Mr Jamal, Mr Patten was appointed on 13 October 2013, made his decision on 25 November 2013 and then he was removed. I note that this was the date the Appeal Panel of the Administrative Decisions Tribunal delivered its decision appealing the Administrative Decisions Tribunal’s decision on 29 July 2013 dismissing Mr Jamal’s original complaints of racial and sexual discrimination. Mr Jamal says Mr Patten was appointed to make that decision only. Overall, Mr Jamal says that Mr Patten is a member and he is not qualified to make decisions at all.

49. As previously stated under Ground (a), Mr Patten was acting as Principal Member of the Tribunal on 14 April 2014. It is those two decisions made on that day that are the subject of this judicial review. This ground of review fails.

(d)   Denial of procedural fairness – error of law

50. Mr Jamal seeks judicial review on the basis of a denial of procedural fairness. A denial of procedural fairness also constitutes an error of law. Mr Jamal submitted that he was denied procedural fairness, firstly, on medical grounds; secondly, by the absence of an interpreter; thirdly, by not having legal representation; and lastly, by not having an opportunity to prepare for his hearing.

51. The starting point is Kioa v West [1985] HCA 81; (1985) 159 CLR 550, where Mason J held that the duty to accord natural justice is a duty to act fairly (at 583). In the normal course, a party to administrative proceedings (as are those in a tribunal) could expect to be apprised of the nature of the case sought to be made against it, and of the date and time fixed for hearing so as to give it a reasonable opportunity to meet that case and to advance its own.

52. In Kioa v West, Mason J (at 584-585) stated that the law in relation to procedural fairness had now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. Procedural fairness is a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. Whether there is a denial of procedural fairness depends on the circumstances in each case.

53. In Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 the High Court discussed the manner in which procedural fairness cases are approached by the courts. Gleeson CJ said (at [37]):

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

54. Section 38(5) and (6) of the Civil and Administrative Tribunal Act set out the Tribunal’s obligations in relation to procedural fairness.

Medical grounds

55. The medical evidence tendered to the Court stated that Mr Jamal was unfit to attend court for a period of one month. However, that month had long since passed (T[98]). Mr Jamal also said that he could not stand long because he had “discs in my neck.” (T[61].)

Interpreter and legal representation

56. Mr Jamal submitted that he told the Principal Member that “he can understand English but not too much.” (T[63].)

57. Mr Jamal submitted to the Principal Member that he wanted to hire a solicitor because for three years he suffered from the Police.

58. The NSW Police Commissioner says that there is no absolute right to have legal representation. The NSW Police Commissioner submitted that at no time did Mr Jamal identify what lawyers he proposed to engage or what steps he had taken to engage them. Mr Jamal represented himself in previous proceedings concerning similar issues and he was more than capable of understanding the proceedings and presenting his case: see Jamal v Director of Public Prosecutions [2013] NSWCA 355 at [48].

Refusal to grant adjournment for Mr Jamal to prepare for his leave hearing

59. The NSW Police Commissioner submitted that there was no identifiable basis for Mr Jamal to be granted an adjournment to prepare for his leave hearing.

60. The Principal Member made a finding that Mr Jamal had received the notice of the hearing. He elected not to make arrangements for an interpreter to be present at the hearing nor did he produce any evidence to show that he had taken steps to engage the services of a legal practitioner. The Principal Member stated that if there was some arguable merit in Mr Jamal’s complaint he would be persuaded that Mr Jamal should be given the opportunity to seek legal advice. The Principal Member had read the papers, which were voluminous, but it appeared to him that there was no arguable basis upon which a claim for unlawful discrimination under the Anti-Discrimination Act could succeed. On that basis the Principal Member could see no arguable reason why Mr Jamal should be entitled to take proceedings in the Tribunal and put the community to the expense and inconvenience which it would involve.

61. In my view, a fair reading of the transcript shows that the Principal Member ensured that Mr Jamal understood the nature of the proceedings and he was given a reasonable opportunity to be heard. It is also my view that Mr Jamal was able to understand what the Principal Member said to him. He did not require the services of an interpreter nor did he require the services of a solicitor. Mr Jamal also offered no evidence of the medical conditions he said affected him on the day of the hearing. The Principal Member exercised his discretion to refuse to grant Mr Jamal an adjournment. He was entitled to do so. The Principal Member afforded Mr Jamal procedural fairness. There is no error of law. This ground of judicial review fails.

(e)   Giving reasons outside the 28 day timeframe

62. Mr Jamal alleges that the adjournment decision and leave decision are void for a breach of s 62(2) of the Civil and Administrative Tribunal Act.

63. The NSW Police Commissioner submitted that there is no evidence to support this allegation and it has no merit on the following bases. Firstly, the Principal Member gave his ex tempore reasons for his decision on 14 April 2014 at the hearing when Mr Jamal was present. Secondly, the Principal Member’s decision took effect on 14 April 2014 when his decision was given. There are no preconditions to the operation of s 61. Thirdly, non compliance with s 62(2), if it applies, does not itself invalidate the decision and such a construction would be contrary to ss 36 and 38 of the Civil and Administrative Tribunal Act.

64. On 14 April 2014, the Registrar forwarded to Mr Jamal, by post, a notice of decision in relation to the leave decision. The order contained a notice which says, “You may request the Tribunal to give you written reasons for its decision. Your request must be made within 28 days of receipt of this notice.”

65. On 22 April 2014, Mr Jamal made a request for the written reasons for that decision within the stipulated time period. On 20 June 2014, he wrote again to the Tribunal asking for a “copy of the decision” (CB 28). On 9 July 2014, he wrote a reminder letter as he still had not received the written reasons. On 8 July 2014, a copy of the transcript of the oral reasons delivered by the Tribunal “in compliance with section 62 of the Civil and Administrative Tribunal Act” was forwarded to Mr Jamal by post.

66. Section 61 of the Civil and Administrative Tribunal Act provides that a decision takes effect on the date on which it is given or such later date as may be specified in the decision. The date the decisions were given was 14 April 2014, when the Principal Member gave ex tempore reasons for his decisions at the hearing at which Mr Jamal was present. There is no precondition in s 61 that written reasons must be given. Section 62(2) provides a mechanism by which parties can seek and receive written reasons for decisions of the Tribunal. Despite the requirement to provide written reasons within 28 days of the making of a request being in mandatory terms, the legislation is silent as to whether a failure to comply with the timeframe results in an invalidation of the decision. In my view, a non compliance with a procedural requirement set out in s 62(2) of the Civil and Administrative Tribunal Act does not lead to the decision being void, particularly in circumstances where Mr Jamal was present when the ex tempore decisions were given. I accept that a transcript of the Principal Member’s reasons for decision was not provided by the Tribunal within the 28 day period; this procedural irregularity does not make the decision void. This ground of judicial review fails.

(f)   The wrong defendant?

67. Mr Jamal’s application to NCAT named himself as the applicant and nominated the NSW Police Force as the respondent. Mr Jamal submitted that the decision by the Principal Member was against the NSW Police Force, who is not the correct litigant, therefore that decision is void. Mr Jamal expanded on this topic by submitting that the Principal Member’s decision was against a litigant who is not a party to the proceedings and therefore his decisions are illegitimate, not effective and are void. Mr Jamal submitted that the correct party should have been the NSW Police Commissioner.

68. The NSW Police Commissioner submitted that it is not correct to proceed on this summons with the first respondent being named the NSW Police Force and that that under Uniform Civil Procedure Rules 2005 (NSW) r 59.3(4), it does appear that NCAT should have been named a respondent to these proceedings. Further, the solicitor for the NSW Police Commissioner submitted that in essence, there were no proceedings before NCAT, only an application by Mr Jamal for leave so it really does not matter what the name of the opposing party was below. Finally, he submitted that the Anti-Discrimination Board originally identified the “NSW Commissioner of Police – “NSW Police Force”.” (DCB, Tab 9, 180), thus the reference to the NSW Police Force is taken as the NSW Police Commissioner, whom Mr Jamal says is the correct party.

69. In his amended summons Mr Jamal has named the respondents as NSW Police Commissioner, A/Commander Eastern Suburbs, Mr Christopher Stiles and JW Box. According to Mr Jamal’s submissions, as I understand them, A/Commander Eastern Suburbs, Mr Christopher Stiles and JW Box discriminated against Mr Jamal by refusing to make a police report on the basis of Mr Jamal’s race and sex. They have filed notices of appearances. They should not have been joined as parties to these proceedings. The NSW Police Commissioner has sought to have the second and third named respondents removed from these proceedings. I make that order.

70. So far as the proper first defendant is concerned, there is no practical difference for present purposes between the “NSW Police Force” and the “NSW Commissioner of Police”. The Anti-Discrimination Board took the plaintiff to mean the NSW Commissioner of Police in its letter dated 22 October 2013 to the Office of the General Counsel for the NSW Police Force (DCB, Tab 9, 180). This letter supports the view that the Anti-Discrimination Board and the NCAT have treated Mr Jamal’s complaint against the “NSW Police Force” as being against the NSW Commissioner of Police. The decision is not void because the plaintiff named the NSW Police Force instead of the NSW Police Commissioner in his application in the NCAT. This ground of judicial review fails.

Availability of judicial review for a leave application

71. In any event it is unlikely that judicial review is available in this Court in relation to a leave application as the granting or refusal of leave is a discretionary decision. As this was not argued before me, I will say no more on this topic.

Conclusion

72. The overall result is that Mr Jamal’s application for judicial review fails. The amended summons filed 17 April 2015 is dismissed.

73. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

The Court orders that:

(1)   The second and third named respondents are removed as respondents from these proceedings.

(2)   The amended summons filed 17 April 2015 is dismissed.

(3)   The plaintiff is to pay the defendant’s costs on an ordinary basis as agreed or assessed.

**********

Decision last updated: 26 May 2016