QQ v NSW Ombudsman

[2012] NSWADT 109

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	QQ v NSW Ombudsman [2012] NSWADT 109
Hearing dates:	On the papers
Decision date:	05 June 2012
Before:	Magistrate N Hennessy, Deputy President Ms Z Antonios, Non-Judicial Member Ms E Hayes, Non-Judicial Member
Decision:	The Tribunal has no jurisdiction to entertain QQ's application for leave to proceed.
Catchwords:	EQUAL OPPORTUNITY - complaint of disability discrimination in the provision of services - jurisdiction - application of s 35A of Ombudsman Act 1974 to conduct of Ombudsman in reviewing decision made by him under Part 8A of Police Act 1990
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Ombudsman Act 1974 Police Act 1990
Cases Cited:	Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 Micro Focus (US) Inc v State of New South Wales [2011] FCA 787 Rae v NSW Ombudsman (unreported ex tempore decision of Patten DP on 18 March 2010) The Ombudsman v Laughton (2005) 64 NSWLR 114
Category:	Principal judgment
Parties:	QQ NSW Ombudsman
Representation:	Counsel S Free (Respondent) QQ (Applicant in person)
File Number(s):	121007

REasons for decision

Introduction

1. The issue in these proceedings is whether the Tribunal has jurisdiction to entertain a complaint of disability discrimination by QQ against the Ombudsman. The Ombudsman submitted that the Tribunal does not have jurisdiction because s 35A of the Ombudsman Act 1974 (Ombudsman Act) prevents the Ombudsman from being liable to any civil proceedings in respect of acts done "for the purpose of executing" any Act, including the Police Act 1990 (Police Act). Before such proceedings can be brought a person must obtain leave from the Supreme Court.

1. QQ submitted that the Tribunal has jurisdiction to entertain his application and leave from the Supreme Court is not required.

1. The issue of jurisdiction has been determined 'on the papers': Administrative Decisions Tribunal Act 1997, (ADT Act) s 76.

Background

1. On 29 August 2011, QQ lodged a complaint of disability discrimination with the President of the Anti-Discrimination Board. The basis for that complaint was that the Ombudsman had declined to provide certain services to QQ on the ground of his disability. The President of the ADB declined the complaint as lacking in substance. At the request of QQ, the complaint was referred to the Tribunal. Before a declined complaint can proceed, the Tribunal must grant leave: Anti-Discrimination Act 1977, (AD Act) s 96. However, before determining whether leave should be granted, the threshold question of whether the Tribunal has jurisdiction to entertain the complaint must be determined.

1. When QQ was a police officer, he was the subject of various complaints. Those complaints were investigated by the Commissioner of Police, as required by Part 8A of the Police Act, and reports were prepared. As required by s 150 of the Police Act, the Commissioner provided the Ombudsman with copies of his reports into the complaints. The Ombudsman has various powers under Part 8A of the Police Act