Orr v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 150

Set aside by Appeal: Set aside by appeal on 13/7/2001

CITATION:	Orr -v- Comissioner of Police, New South Wales Police Service [2000] NSWADT 150
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Amanda Orr RESPONDENT Comissioner of Police, New South Wales Police Service
FILE NUMBER:	991111
HEARING DATES:	22/08/2000
SUBMISSIONS CLOSED:	08/22/2000
DATE OF DECISION:	10/31/2000
BEFORE:	Bartley R - Judicial Member; Farmer L - Member; Luger M - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Application under s111(1)
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT C Ronalds, barrister RESPONDENT P Singleton, barrister
ORDERS:	Order made 22/08/2000; 1. Application under section 111 is dismissed.

1 On 24 September l997 the President of the Anti-Discrimination Board received a complaint from Amanda Orr alleging discrimination on the ground of sex. The President advised that all the alleged incidents except the complainant’s resignation from the Police Force occurred out of time.

2 However he exercised his discretion under s 88(4) of the Anti-Discrimination Act 1977 and accepted all the out of time matters as part of Ms Orr’s complaint under the Anti-.Discrimination Act 1977.

3 On 10 November 1999 the President referred the matter to the Equal Opportunity Division of the Administrative Decisions Tribunal under s 94(1)(a) of the Anti-Discrimination Act 1977 because he believed in the circumstances the complaint could not be conciliated.

4 The applicant in this application has now made an application under s 111 for the various orders set out in its application.

5 The grounds on which the Orders (which are quite numerous) are sought are set out in the application and generally include a statement the “Respondent (to the main complaint) is unfairly prejudiced by the delay in initiating the complaint”.

6 Many of the Orders sought relate to striking out of the amended Points of Claim.

7 None seek the dismissal of the complaint as lodged with the President of the Anti-Discrimination Board, and forwarded to the Tribunal.

8 Section 111 of the Anti-Discrimination Act 1977 provides:

(1) 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.

9 In the Tribunal’s view there is a difficulty in dealing with a section 111 application ( as in this matter) before a hearing commences. This is because as, in this matter, there is no evidence or agreed facts, on which the Tribunal can base its a decision.

10 In this case the respondent to the complaint wanted to tender the Complainant’s affidavit and submitted that the evidence was to be taken at it’s highest for the purpose of the application. The Complainant objected and the objection was upheld. It was not for the applicant –Respondent to submit the other side’s case. The complainant was entitled to present her case ( s 70 Administrative Decisions Act).

11 In addition this application is unusual as it does not seek the dismissal of the complaint lodged with the President of the Anti-Discrimination Board but rather that various matters be struck out of the Complainant’s Points of claim. It claims there was evidence of more than one complaint and some should be struck out.

12 The lodging of Points of Claim and replies thereto, as directed by the Tribunal from time to time is to identify the issues between the parties to assist the Tribunal in its Inquiry. The fact that something appears in a Point of Claim does not make it evidence or bind a party to the proceedings when the Inquiry commences. Many cases since March 2000 are proceeding without directions requiring Points of claim to be filed and the filing of replies thereto.

13 Ms Ronalds submitted that this application under section 111 of the anti-discrimination Act was a complete misconception of what section 111 seeks to achieve. Ms Ronalds submitted that the Applicant in this application by making an application under s 111 of the Anti-Discrimination Act 1977 was making an attempt to use it for a purpose other than for which it was designed.

14 Ms Ronalds further submitted the proper time was to hear the matters raised by the application under section 111 in this matter was after the Inquiry had commenced and at the end the Applicant-Respondent’s case.

15 The absence of evidence or agreed facts concerned the Tribunal. However it was thought Mr. Singleton should be given the opportunity to place the applicant ‘s submissions in this matter before the Tribunal.

16 Both parties had made written submissions to the Tribunal which the Tribunal has read and considered.

17 Mr. Singleton submitted that the Inquiry had begun, in effect, by the fact the Tribunal had to hear the s 111 Application.

18 The Tribunal did not accept this submission that the Inquiry had begun as the complainant had not had a chance to present her case.

19 Mr. Singleton submitted that there was no need to call evidence as in criminal cases it was possible to apply for a demurrer without calling evidence and similar principles should apply to the Tribunal and further that there has been demurrer proceedings for years in the criminal courts without evidence being given.

20 In criminal cases by demurring to an indictment , the person alleges some substantial defect in the indictment .The statutory provisions in the Anti-Discrimination Act and the Administrative Decisions Act are quite different.

21 He further submitted that the Tribunal should follow the case of the case of Ravel v Gonzales. The Tribunal accepts the submission of Ms Ronalds that this case and others of like nature should now be judged in the light of s 70 of the Administrative Decisions Act 1997.

22 This section provides:

The Tribunal must ensure that every party to proceedings before the Tribunal is given a reasonable opportunity:
(a) to present the party’s case (whether at a hearing or otherwise), and
(b) to make submissions to the issues in the proceedings.

23 The Tribunal accepts Ms Ronald’s submission in this regard. Section 70 reflects the case law on this matter and is of the view the respondent should have the opportunity to present her case as brought.

24 Notwithstanding section 70 the Tribunal does not find the decision mentioned of assistance in determining this matter.

25 It was further submitted on behalf of the applicant in this matter that the complaint forwarded by the President of the anti-Discrimination Board to the Tribunal is really a series of complaints, not one complaint and some should be dismissed.

26 Mr. Singleton agreed some parts of the case would go to a hearing but he submitted the Tribunal should determine at this stage which parts of the case disclosed a course of action and which parts did not.

27 We accept Ms Ronald’s submission that the application misconceives the purpose of section and the Respondent is trying to use section 111 for a purpose for which it is not designed.

28 Mr. Singleton further submitted that the Tribunal in trying to construe whether or not this s 111 application can be heard at this stage should look to whether or not it is just or absurd to allow or not allow the Inquiry to be conducted at this stage. We not accept this is a proper test for the matter the Tribunal has to decide.

29 The respondent has provided us with a series of submissions as to whether or not the application can be heard now, but, in particular, has not provided us with any evidence on which to base our decision. We accept Ms Ronald’s decision the application is misconceived.

30 In the alternative it was submitted by the Applicant in this application that section 81 of the Administrative Decisions Act could be used to make the amendments sought.

31 We accept Ms Ronalds submission that this section is only to do with amendments and irregularities regarding procedural matters, possibly coming to light in the course of the Inquiry and not to the substantive provisions of a party’s case.

32 Other submissions were made by each of the parties and the Tribunal has considered all. We accept the submissions of Ms Ronalds.

33 The major complaint of the applicant in this application is that the applicant is unfairly prejudiced by the delay in initiating the complaint.

34 Whether a complaint is received out of time or not is a matter for the President of the Anti-Discrimination Board and whilst in due course there may be some force in such a submission, the effect of it can only be seen when the Tribunal turns to consider the evidence adduced.

35 The Tribunal acknowledges there could be a conflict between s 111 of the Anti-Discrimination Act 1977 and s 70 of the Administrative Decisions Act 1997 and, if there is, prefers the latter Act to the former.

36 In addition the latter Act conforms to the current cases on the topic covered by section 70.

37 The Tribunal is of the view that it has no power to amend Points of Claim, which are only just that, Points of Claim, and in effect little different from submissions.

38 In addition the Tribunal has no power to make the deletions sought by the Applicant in this case.

39 Usually the Tribunal would give reasons immediately for dismissing and application like this, but having regard to the substantial media attention this matter drew it was thought that the interests of the parties would be best served by letting the parties apply for reasons if they so required.

40 The dismissal of the application is confirmed.