Ritson v Commissioner of Police, NSW Police Force
[2013] NSWADT 148
•28 June 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Ritson v Commissioner of Police, NSW Police Force [2013] NSWADT 148 Hearing dates: 31 May 2013 Decision date: 28 June 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The NSWPF's application to dismiss Mr Ritson's complaint of victimisation "by refusing to process an application for the National Police Service Medal" is granted.
2. Mr Ritson's application to amend his complaint to include an additional complaint of victimisation "by refusing to process Mr Ritson's application for ex gratia assistance" is refused.
3. Mr Ritson's application to amend his complaint to include an additional complaint of victimisation by "threatening to enforce the indemnity in clause 7(d) of the deed" is refused.
4. The NSWPF's application for costs on an indemnity basis from 31 October 2012 is refused.
Catchwords: ANTI-DISCRIMINATION - Application by NSW Police Force to summarily dismiss complaint under Anti-Discrimination Act 1977 - Whether deed of release prevents applicant from making the complaint - Application to amend complaint - Whether deed of release applies and/or application misconceived - Whether fair to award costs Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Privacy and Personal Information Protection Act 1998
Workplace Injury Management and Workers Compensation Act 1998Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131
Bank of Credit and Commerce International SA v Ali [2001] 1 AC 251
Chi v Coles Supermarket Australia Pty Limited [2006] NSWADTAP 3
Grant v John Grant & Sons Pty Ltd (1952) 91 CLR 112
Matthews v Hargraves (No 4) [2013] FMCA 4
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Ritson; R v Stacey [2010] NSWDC 160
Sebastian v Rail Infrastructure Corporation and Ors [2005] NSWADT 281
Tu v University of Sydney (No 2) [2002] NSWADTAP 25
Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 323Texts Cited: JW Carter, Contract Law in Australia, 4th edition, Lexis Nexis Butterworths, 2002 Category: Interlocutory applications Parties: Brendan Ritson (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: Counsel
M Spartalis (NSWPF)
Henry Davis York (NSWPF)
File Number(s): 131011 Publication restriction: Pursuant to s 75(2)(c) of the Administrative Decisions Tribunal Act 1997, the publication of the deed of release between the parties dated 22 November 2011 is prohibited except that the tribunal may publish any unredacted parts of the deed in these reasons for decision. The reasons for decision may be published in full.
REASONS FOR DECISION
Introduction
Mr Ritson, a former police officer, complains that the New South Wales Police Force (NSWPF) has victimised him, in breach of the Anti-Discrimination Act 1977 (AD Act). The act of victimisation is said to be refusing to process his application for a National Police Service Medal because he has lodged a complaint of disability discrimination. The NSWPF has applied for that complaint to be dismissed because a deed of release signed by the parties on 22 November 2011 releases the NSWPF from liability for such a claim. Mr Ritson submits that the deed does not have that effect. As well as opposing the application for dismissal, Mr Ritson has applied for his complaint to be amended to add two further complaints of victimisation.
I have decided to dismiss the victimisation complaint because it is barred by the deed. Having made that decision, there is no complaint that can be amended. But I have given reasons, on a hypothetical basis, for deciding that the first proposed complaint is also barred by the deed and the second proposed complaint is misconceived.
Mr Ritson did not appear at the hearing to determine the NSWPF's dismissal application and his amendment applications. On the morning of the hearing, 31 May 2013, he contacted the Registry by phone at approximately 9:30 am and said that he would not be attending because of ill health. He indicated that the Tribunal should proceed to hear both applications in his absence. The Tribunal had written submissions from both parties and heard oral submissions from the NSWPF.
Suppression order
The NSWPF applied for a suppression order in relation to the publication of the deed of release. That application was foreshadowed to Mr Ritson in letters dated 3 and 5 May 2013. The reason for the application was said to be "to protect, to the greatest possible extent, the confidentiality provisions contained within the deed." On 10 May 2013 Mr Ritson responded by saying that the NSWPF had not given him enough information about the suppression application for him to respond.
The President of the Anti-Discrimination Board requested a copy of the deed from the parties when he was investigating the complaint. The NSWPF was not prepared to provide the President with a copy of the deed without Mr Ritson's consent. Mr Ritson told the President in an email dated 1 February 2013 that he was unable to provide his consent or confirm the existence of a deed. That comment implies that Mr Ritson would support a suppression order. But given that he said he did not have enough information to respond to the application and he did not appear at the hearing, I have assumed that he opposes the application.
At the hearing, the NSWPF tendered a confidential redacted version of the deed. NSWPF requested that the Tribunal prohibit publication of the redacted parts of the document. In relation to the unredacted parts, it agreed that the Tribunal could quote from those parts of the deed in its reasons for decision. Otherwise, publication of the unredacted parts of the deed should also be prohibited. I accepted the redacted deed into evidence.
The Tribunal has power to prohibit or restrict the publication of evidence if it is satisfied that it is "desirable to do so". Section 75(2)(c) of the Administrative Decisions Tribunal Act 1997 (Tribunal Act) provides that:
(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.
(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
. . .
(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal
The parties have engaged in confidential discussions and come to an agreement which is contained in the deed. Clause 15 states that the deed is "strictly confidential". The only exception is that the contents may be disclosed by the parties to their legal or financial advisers for the purpose of enforcing the document or as may be required by law.
It is in the parties' interests that the contents of the deed remain confidential to the greatest extent possible. It is also in the public interest for the Tribunal to uphold confidentiality clauses agreed to in good faith by the parties. Despite those interests it is not possible for the Tribunal to determine the parties' applications without reading the deed. Nor is it possible to adequately explain the reasons for decision without quoting relevant clauses from the unredacted parts of the deed. Any disclosure beyond those purposes should be prohibited. I make the following order:
Pursuant to s 75(2)(c) of the Administrative Decisions Tribunal Act 1997, the publication of the deed of release between the parties dated 22 November 2011 is prohibited except that the tribunal may publish any unredacted parts of the deed in these reasons for decision. The reasons for decision may be published in full.
Application for dismissal
Current victimisation complaint
Mr Ritson was employed by NSWPF from 21 December 2001 until 10 March 2011 when he was medically discharged. On 22 November 2011 the parties entered into a deed of release agreeing to resolve all their differences and bring to an end all Mr Ritson's "Claims".
On 9 December 2011, approximately three weeks after signing the deed, Mr Ritson applied to the NSWPF to be awarded the National Police Service Medal. Service medals are awarded by the Governor-General on the recommendation of the NSWPF. By letter of 16 January 2012, the NSWPF refused to process that application because it said that the deed of release was a bar to such a request.
Nine months later, on 31 October 2012, Mr Ritson complained to the President of the Anti-Discrimination Board that the NSWPF's refusal to process his application for a service medal constituted victimisation in breach of s 50 of the AD Act. On 19 February 2013 the President of the Anti-Discrimination Board referred Mr Ritson's complaint to the Tribunal. The referral of a complaint is taken to be an application for an original decision under the Tribunal Act: AD Act, s 95(3).
Section 50 of the AD Act makes it unlawful for a person to subject another person to a "detriment" because the other person has, for example, brought proceedings under the AD Act against the first person. Mr Ritson alleges that the NSWPF has refused to process his application for a service medal because he complained of disability discrimination in 2009.
Section 50 of the AD Act provides that:
(1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
Grounds for dismissal
The NSWPF has applied for the current complaint of victimisation to be summary dismissed because:
(1) it is frivolous, vexatious, misconceived or lacking in substance: Tribunal Act, s 73(5)(g)(ii) and AD Act, s 102 and s 92(1)(a)(i); and/or
(2) no further action should be taken in regard to the complaint for "any other reason": AD Act, s 102 and s 92(1)(b).
The basis for the application is that the deed of release bars Mr Ritson from proceeding with the complaint. The Tribunal has power to dismiss a complaint on that basis: Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; Sebastian v Rail Infrastructure Corporation and Ors [2005] NSWADT 281 at [37] - [50] to (upheld on appeal at [2006] NSWADTAP 44); Chi v Coles Supermarket Australia Pty Limited [2006] NSWADTAP 3; Matthews v Hargraves (No 4) [2013] FMCA 4 at 179, 206 -207.
Issue
The issue is whether the deed prevents Mr Ritson from pursuing a claim of victimisation in relation to the NSWPF's decision not to process his application for a service medal. This issue is governed by common law principles as to the construction of contracts.
What does the deed say?
The parties signed the deed on 22 November 2011. There is no dispute that each received what had been promised under the deed. Mr Ritson did not suggest that he was subject to any coercion or duress when he signed the deed. The parties acknowledge in the deed that they have entered into the document "fully and voluntarily upon their own investigations." Mr Ritson warranted that he had read the terms of the deed and had had the opportunity to obtain independent legal advice as to the nature, effect and extent of the document.
Under the heading "Background", the deed contains some information about events before the deed was signed. I have quoted paragraphs A, D, F, G and V as they appear under that heading:
A Mr Ritson was employed with the NSWPF from 21 December 2001 until March 2011 when he was medically discharged (Employment)
D Mr Ritson has commenced multiple sets of proceedings against NSWPF, as set out in Schedule One (Proceedings)
F Mr Ritson has made and foreshadowed multiple complaints against NSWPF and its Officers in relation to periods both during and after the Employment, including those set out in Schedule Two (Complaints)
G Mr Ritson has made numerous requests to NSWPF and its Officers, both during and after the Employment including those set out in Schedule Three (Requests)
V Without admission of liability, the parties have agreed to resolve all of their differences and bring an end to all Claims by fully and finally settling all matters between them and any contemplated or potential Claims by Mr Ritson, in the manner set out in this document.
The deed settles two separate matters which I will call injury claims and non-injury claims. The injury claims relate to work injury damages and workers compensation. The non-injury claims include settlement of specific proceedings, complaints, requests, breaches of privacy and all claims related to employment. The NSWPF agreed to pay two separate amounts to Mr Ritson in settlement of each of the two matters. These proceedings are concerned with the settlement of the non-injury claims.
The non-injury claims which are "fully and finally" settled by the deed are set out in clause 2.1:
(a) the Proceedings (10 civil proceedings commenced by Mr Ritson against NSWPF in the Supreme Court and the Administrative Decisions Tribunal);
(b) the Complaints (13 groups of complaints made by Mr Ritson including complaints of discrimination, non-compliance with model litigant policy, disclosure of confidential information, complaints against numerous police officers for corruption, harassment, victimisation etc);
(c) the Requests (5 requests of various kinds made to NSWPF);
(d) the investigation of complaints in any way connected with breaches of Mr Ritson's privacy;
(e) the facts and circumstances described in the Background clauses to the deed; and
(f) any and all Claims and entitlements, other than any claim for compensation for damages arising from exposure to asbestos, arising from Mr Ritson's:
(i) Employment
(ii) Contract of employment with NSWPF;
(iii) On and off duty interactions with NSWPF or any of its Officers; and
(iv) Discharge from the Employment.
The terms "Claims", "Employment", "Officers", "Proceedings" and "Requests" are all defined in the deed. Of particular importance is the definition of "Claims" at 1.2 of the deed:
Claims means the Proceedings, Complaints, Requests, and includes all other actions, complaints, requests, and contemplated or potential actions, complaints and requests, obligations, sums of money, causes of action, accounts, costs, charges, expenses, claims and demands at law or in equity and arising under industrial instrument or statute, including, without limitation, the Police Act 1990, the Government Information (Public Access) Act 2009, the Health Records and Information Privacy Act 2002, the Privacy and Personal Information Protection Act 1998 and the State Records Act 1998, other than the Myers Private Prosecution.
By clause 7 Mr Ritson releases NSWPF from all claims described in that clause. Apart from an exception for the enforcement of the District Court Costs Order, the release includes all the non-injury claims that were settled by clause 2.1. The release also covers any claims that he "has or had or may have" against NSWPF or its officers arising out of the matters listed at (a) to (f) in [21] above:
7 Release and bar to proceedings
(a) Other than any enforcement by Mr Ritson of the District Court Costs Order or any action to enforce this deed, Mr Ritson, by this document, releases and forever discharges NSWPF and its Officers from all Claims, both at law or in equity and/or arising under any statute which he has or had or may have against NSWPF or its Offices, arising out of or in any way related, either directly or indirectly, to:
(i) the Proceedings;
(ii) the Complaints;
(iii) the Requests;
(iv) the investigation of complaints in any way connected with breaches of Mr Ritson's privacy:
(v) the facts and circumstances described in the Background clauses; and
(vi) any and all Claims and entitlements, other than any claim for compensation or damages arising from exposure to asbestos arising from Mr Ritson's:
(A) Employment
(B) contract of employment with NSWPF;
(C) on and off duty interactions with NSWPF or any of its Officers; and
(D) discharge from the Employment.
Clause 7(c) of the deed expressly acknowledges that the deed may be pleaded as a bar to any "Claims or actions":
This document may be pleaded as a bar to any Claims or actions commenced, or to be commenced, by Mr Ritson against NSWPF or any of its Officers concerning or arising out of or in any way related, directly or indirectly, to the matters in clause 7(a)(i)-(vi) above.
Under the heading "Acknowledgments and warranty" at 8.2(b) the parties acknowledge:
that the terms will apply even if a party or its advisers, agents or lawyers discovers facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this document
Legal principles
There are no special rules of interpretation in relation to release clauses. As with any contract such a clause should be interpreted to give effect to what the contracting parties intended. According to Lord Bingham in Bank of Credit and Commerce International SA v Ali [2001] 1 AC 251 at 259, [8]:
To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties' relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties' intentions the court does not of course inquire into the parties' subjective states of mind but makes an objective judgment based on the materials already identified.
That proposition accords with the frequently quoted High Court authority Grant v John Grant & Sons Pty Ltd (1952) 91 CLR 112 where it was held at pp 129-130 that:
From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.
The most relevant Australian authority is Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26. In that case the Court of Appeal dismissed an appeal from the Equal Opportunity Tribunal (the predecessor to the Equal Opportunity Division of this Tribunal). The Tribunal had decided that complaints of sex discrimination fell outside the terms of the deed of release that the complainants had signed. In that decision Gleeson CJ and Handley JA held at 31, that a person affected by discriminatory practices prohibited by the AD Act is not free to bargain away in advance their rights to seek relief under that Act.
In construing the release in clause 7 of the deed, I must have regard to the deed as a whole and give effect to the objective intention of the parties. I must also ask whether, as a matter of public policy, Mr Ritson has bargained away his rights in advance under the AD Act?
What did the parties intend?
There is inconsistent authority as to the evidence that may be taken into account in determining the parties' intention. As Lord Nicholls pointed out in Bank of Credit and Commerce International SA v Ali at [31], for many years it has been accepted that the actual intention of the parties is not admissible. His Lordship noted that whether this proposition is still good law has been the subject of ongoing debate and cites Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 323.
I have not had regard to any evidence about the parties' subjective intention at the time the deed was signed. Rather I have relied on evidence of their objective intention as evidenced by the terms of the deed and the surrounding circumstances.
In his written submissions, Mr Ritson purported to give evidence that the issue of the Service Medal application was "raised" during mediation and NSWPF was "aware" that he would require documentation to support that application. The NSWPF objected to this evidence. There was also evidence in the letter NSWPF wrote to Mr Ritson in response to his application for a service medal of what took place during the mediation.
The Tribunal is not bound by the rules of evidence but I have decided not to admit any evidence of what occurred during the mediation. That evidence was not in the form of a statement or affidavit and neither party gave oral evidence about it. It is not procedurally fair to take it into account.
I have had regard to the correspondence between the parties after the deed was signed as part of the surrounding circumstances but not as to what took place during the mediation.
Two clauses in the section of the deed relating to the non-injury claims are relevant to the parties' objective intent:
(1) Clause 2.2 of the deed headed "certificate of service" states that:
Mr Ritson acknowledges that NSWPF has provided him with a certificate of service on 22 November 2011.
(2) Clause 2.5 headed "Letter from NSWPF" provides that:
NSWPF agrees to provide Mr Ritson with a letter in the form set out in schedule 4 on or before the Due Date.
A letter, consistent with the draft letter at Schedule 4, was provided to Mr Ritson. It is from Assistant Commissioner Carey and acknowledges that while the NSWPF does not agree with all of Mr Ritson's complaints, it was legitimate and consistent with his ethical obligations to register his concerns. The letter lists numerous complimentary remarks made in relation to Mr Ritson's work while a police officer and thanks him for his service.
The deed was executed on 22 November 2011. On 9 December 2011, Mr Ritson wrote directly to the National Police Service Medal Protocol and Awards Unit of the NSWPF applying for the service medal and enclosing his certificate of service and the letter from Assistant Commissioner Carey.
On 22 December 2011 Mr Ritson's solicitor wrote to the solicitors for NSWPF enclosing the application for the service medal pursuant to a request that Mr Ritson deal directly with the solicitors rather than the National Police Service Medal Protocol and Awards Unit. The solicitor's letter states, in part, that, "It is anticipated that this is the last matter between our respective clients." The letter goes on to say that, "My client was not able to address this matter earlier as he required his Certificate of Service and the letter from Assistant Commissioner Carey. It would be appreciated if you would forward the application and acknowledge you have done so."
According to NSWPF, by not ensuring that the service medal application be "carved out" of the deed, Mr Ritson is now bound by the terms of the deed which releases NSWPF for all "Claims". The reply from the NSWPF dated 16 January 2012, omitting those parts relating to what happened in the mediation:
Our client has considered Mr Ritson's request, being an application for the National Police Service Medal.
As you are aware, your client entered into a deed of release with NSWPF on 22 November 2011 (the deed). We note that your client says that he did not make this application earlier, as he required his Certificate of Service and the letter from Mr Carey.
. . .
Accordingly, we are instructed that NSWPF relies upon the terms of the deed . . .
We are instructed that this application will not be progressed further, and that our client will not enter into further correspondence in relation to this request.
The conduct that Mr Ritson alleges constitutes victimisation under the AD Act is refusing to process the application for a service medal and make a positive recommendation to the Office of the Governor-General. The awarding of the National Police Service Medal is a matter that relates to a police officer's employment and discharge from employment. Processing the application will call upon the NSWPF to review Mr Ritson's "employment" with NSWPF. Furthermore, because Mr Ritson has not satisfied the criteria of 15 years service for the awarding of the medal, the NSWPF would also need to consider the circumstances of Mr Ritson's discharge from employment.
The request for a certificate of service and a letter from the Assistant Commissioner gives rise to an inference that it was Mr Ritson's intention to apply for a service medal. It does not give rise to an inference that NSWPF would make a favourable recommendation on the basis of such an application. Such an application is neither included as one of the kinds of "Requests" in Schedule 3 that is being settled by the deed, nor is it expressly excluded or "carved out" of the deed. The deed provides that the terms of the deed will apply even if one party discovers facts different from the facts that they now know or believe to be true with respect to the subject matter of the document.
Despite the provision of the certificate of service and the letter from the Assistant Commissioner as part of the deed, the objective intention of the parties was to release NSWPF from any liability that arises out of or is related, directly or indirectly, to Mr Ritson's employment or discharge from employment, as defined in the deed.
The "Claim" as defined and qualified in clause 1.1 and clause 7, may be a "contemplated or potential action, complaint or request" which Mr Ritson "has or had or may have" against NSWPF or its Officers. The complaint had not been made when the deed was signed but it was a "potential" complaint that Mr Ritson may have in the future based on facts and circumstances of which he was aware at the time. Such complaints are barred by the deed.
As a matter of public policy, does the release in clause 7 bargain away Mr Ritson's rights in advance under the AD Act?
The AD Act does not, in terms, prohibit "contracting out": Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, Gleeson CJ and Handley JA at 31. That situation can be contrasted with other legislation such as s 234 of the Workplace Injury Management and Workers Compensation Act 1998 which provides that:
This Act and the 1987 Act apply despite any contract to the contrary.
But because the rights conferred by the AD Act are of a public rather than a private nature, it is contrary to public policy to allow its provisions to be excluded in advance by a contract: JW Carter, Contract Law in Australia, 4th edition, Lexis Nexis Butterworths, 2002 [1627] p 575.
While this general rule applies to bargaining away rights in advance, it does not apply to settling existing or known disputes. In Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Gleeson CJ and Handley JA regarded it as clear that "persons affected by discriminatory practices prohibited by the Act are not free to bargain away in advance their rights to seek relief under the Act." Referring to discriminatory practices, their Honours went on to say that:
The Act forbids those practices and seeks to eradicate them
from the life of the State. The evident policy of the statute is that such practices should cease. Contracting out of the statute in advance would be directly contrary to this policy. . .
The position is otherwise once disputes have arisen. The Act encourages the settlement of disputes . . .
It is clear then that the Act does not prohibit complainants from compromising or releasing accrued claims for damages.
The release in clause 7 is not a 'general release' which purports to prevent Mr Ritson from making any claim against the police whatsoever regardless of the circumstances. It is confined to certain subject areas including his employment.
In this case, Mr Ritson has not bargained away his rights under the AD Act in advance. Bargaining away rights in advance means agreeing not to complain about facts that are unknown at the time. It is against public policy to bargain away such rights. Lord Bingham expressed the view in Bank of Credit and Commerce International SA v Ali [2001] 1 AC 251 at 260 [10] that the "court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware." This is not a case where some unknown event or circumstance came to light after the deed was signed. There was nothing about which the parties were ignorant. Mr Ritson was aware that the NSWPF would have to make a favourable recommendation before he would be entitled to a service medal.
There can be no public policy objection to a party agreeing to forego his or her right to complain under the AD Act in relation to facts or circumstances about which he or she is aware at the time.
I will deal briefly with other submissions Mr Ritson made as to why his complaint should not be dismissed:
(1) there is an implied term of the deed that the NSWPF will recommend that he be awarded a service medal; and
(2) the complaint can be characterised as an enforcement of the implied term in the deed and is therefore excluded.
I do not accept Mr Ritson's submission that it is an "implied term" of the deed that the NSWPF would forward the medal application to the Governor-General with a favourable recommendation. No such implication arises on the evidence. I have found that the objective intention of the parties was to release the NSWPF from any complaint based on a refusal to process that application.
Clause 7(a) begins with the words, "Other than any enforcement by Mr Ritson of the District Court Costs Order or any action to enforce this deed, Mr Ritson, by this document, releases . . . " According to Mr Ritson, the words "any action to enforce this deed" are broad and include an action to enforce the deed by way of the current complaint of victimisation under the AD Act. Mr Ritson says that the NSWPF's refusal to process the medal application is a breach of the implied term of the deed and his complaint is an action to enforce that implied term.
While I understand Mr Ritson's logic, I do not accept his submission that the current victimisation complaint is, in any sense, an action to enforce the deed. It is a complaint under the AD Act, not a proceeding in a court to enforce the deed. It is irrelevant if the deed may be incidentally "enforced" in a practical sense by an order made by the Tribunal under s 108 of the AD Act.
Mr Ritson's complaint of victimisation is dismissed for "any other reason" under s 102 and s 92(1)(b) of the AD Act. That reason is that the complaint is barred by the deed.
Applications to amend complaint
Introduction
Because the current complaint of victimisation has been dismissed, there is nothing to amend. That makes it unnecessary for me to consider the amendment applications. But in case Mr Ritson is considering lodging a fresh complaint under the AD Act I will set out my hypothetical view on the merits of such a complaint. If Mr Ritson decides to lodge fresh complaints with the President of the Anti-Discrimination Board, the President is not bound by my view.
The first question is whether the proposed complaints are barred by the deed. If not, are they misconceived or lacking in substance?
First proposed new complaint
The first proposed new complaint is that the NSWPF victimised Mr Ritson by not processing his application for ex gratia assistance in relation to the costs of certain District Court proceedings. The District Court made a costs order in favour of Mr Ritson following a successful appeal from a criminal conviction. There is no evidence of the date that order was made or the alleged offence to which it related. But I was able to access the District Court's judgment on line: R v Ritson; R v Stacey [2010] NSWDC 160.
On 30 July 2010 the District Court upheld an appeal by Mr Ritson against a conviction under s 62(1) of the Privacy and Personal Information Protection Act 1998:
A public sector official must not, otherwise than in connection with the lawful exercise of his or her official functions, intentionally disclose or use any personal information about another person to which the official has or had access in the exercise of his or her official functions.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
On 26 February 2013 Mr Ritson's solicitors wrote to the NSWPF claiming that there was a shortfall of $82,940.45 in relation to the costs of the criminal proceedings. The letter to the NSWPF explained the application for an ex gratia payment in the following terms:
The District Court Costs Certificate issued in relation to our client's successful District Court appeal and application for costs has been determined by the Director General of the Attorney General and Justice.
The determination has resulted in a shortfall of $82,940.45 of the $167,227.35 claimed by our client. A summary of costs claimed by my client were:
Mitchell lawyers - solicitor's Costs . . . $45,682.29
Russell Sweet, Counsel's fees . . . $107,526.05
Walter Madden Jenkins Solicitor's costs . . . $8,119.01
GRAND TOTAL $161,327.35
To give full effect to enforcing the costs order made by the District Court appeal proceedings, our client is seeking to renew his application to the Department of Justice and Attorney General for ex gratia assistance limited to the sum of the shortfall, being $82,940.45. Government policy requires such application to be subject to the initial consideration of the relevant Minister's Department. The guidelines pursuant to M1999-11 provide that our client is eligible as a former police officer who has had criminal proceedings brought against him by the Commissioner of Police or the Director of Public Prosecutions and the offence has not been proven.
The 26 February 2013 application to the Department of Justice and Attorney General was apparently a renewal of an existing application for ex gratia legal assistance. The earlier application was not in evidence.
Mr Ritson submits that by refusing to process the ex gratia application the NSWPF has subjected him to a detriment in breach of the victimisation provision of the AD Act. The detriment is denying him the benefit of consideration by the Attorney General of the ex gratia payment. Mr Ritson alleges that the real reason for subjecting him to this detriment is the fact that he made a complaint of disability discrimination in 2009.
As with the victimisation complaint in relation to the application for a service medal, in construing the release in clause 7 of the deed, I must have regard to the deed as a whole and give effect to the objective intention of the parties. I must also ask, as a matter of public policy, whether Mr Ritson has bargained away his rights in advance under the AD Act?
Clause 7(a) of the deed discharged the NSWPF from all "Claims" with certain exceptions including the "District Court Costs Order". The "District Court Costs Order" is defined in the deed to mean "any costs order of the District Court that is made in favour of Mr Ritson as a result of the successful appeal of his criminal conviction arising out of District Court proceedings DC 2009/5372." The NSWPF submits that any complaint arising from the refusal to process the request for an ex gratia payment is barred by the deed because it is an application that arises from Mr Ritson's employment as a police officer.
The ex gratia application was made under the Premier's Memorandum 1999-11, Guidelines for the Provision of Ex Gratia Assistance for Legal Representation for Ministers of the Crown, Public Officials and Crown Employees. It includes police officers. According to the NSWPF, Mr Ritson is entitled to make an ex gratia application because he was employed as a police officer. As Mr Ritson is barred from bringing proceedings in relation to any claim arising from his employment, he is barred from making the proposed complaint.
The release in clause 7 precludes Mr Ritson from lodging complaints under statute, including the AD Act, relating to his employment or discharge from employment. It follows that, on its terms, clause 7 prevents Mr Ritson from lodging a complaint of victimisation under the AD Act based on a refusal to process the ex gratia application.
Mr Ritson's appeal to the District Court was determined some 16 months before he signed the deed. He and/or his legal advisers knew that he would be out of pocket in relation to the costs of those proceedings even with the payment of the District Court Costs Order. Despite that knowledge he did not "carve out" an application for an ex gratia payment from the deed as he did with some other requests and claims. Nor did he seek to preserve any rights he may have had under the AD Act to complain about victimisation if such a request was refused.
In all the circumstances the release from making complaints under the AD Act relating to Mr Ritson's employment is consistent with the parties' objective intention.
Mr Ritson has not bargained away his rights under the AD Act in advance. He was aware of the facts and circumstances that could give rise to an application for an ex gratia payment when he signed the deed.
Mr Ritson says that the ex gratia application does not fall within the scope of the release in clause 7(a) of the deed as it is "enforcement" by him of the District Court Costs Order and is therefore an exception to the release. This submission is not correct because the District Court Costs Order, as defined in the deed, has already been paid.
It is my hypothetical view that the release in clause 7 applies to the application for an ex gratia payment. Given that view, it is not necessary to decide, even hypothetically, whether the proposed complaint is misconceived or lacking in substance.
Second proposed new complaint
The second proposed new complaint is that the NSWPF victimised Mr Ritson by "threatening" to enforce the indemnity in clause 7(d) of the deed." Clause 7(d) of the deed states that:
Mr Ritson indemnifies the NSWPF and each of its Officers against:
(i) all Claims which Mr Ritson now has or could, would or might but for this release have or have had against the NSWPF or any of its Officers, related to the matters addressed in this deed; and
(ii) in any way related to the enforcement of this deed by NSWPF.
The NSWPF's solicitors wrote to Mr Ritson on 21 March 2013, a week before the first case conference at the Tribunal. The letter states in part that the NSWPF will be applying for the whole of the proceedings to be dismissed based on the terms of the deed. The letter goes on to say:
We refer you to clause 7(d) of the deed. We are instructed that our client will be enforcing the indemnity that you have provided in that clause to recover the full amount of its costs incurred in defending your complaint before the NSW Anti-Discrimination Board and the NSW Administrative Decisions Tribunal. We will write to you setting out the amount that our client will be seeking from you once these proceedings are dismissed or discontinued.
On 24 April 2013 the NSWPF's solicitors wrote to Mr Ritson again stating that it would be enforcing the indemnity in clause 7(d) of the deed to recover the full amount of its costs incurred in defending the complaint before the Anti-Discrimination Board and the Tribunal.
Mr Ritson submitted that by "threatening" to enforce the indemnity in clause 7(d) of the deed when it does not apply, the NSWPF has subjected him to a detriment in breach of s 50 of the AD Act. In this case the reason for the detriment was said to be Mr Ritson's current (dismissed) complaint of unlawful victimisation rather than the previous complaint made in 2009.
In my hypothetical view, the deed itself does not prevent Mr Ritson from making this complaint. But the complaint is misconceived because it relies on an incorrect assumption that the deed does not prevent Mr Ritson from lodging a victimisation complaint about the refusal to process the service medal application. I would not allow the complaint to proceed as it is misconceived.
Costs
The NSWPF applied for costs. Mr Ritson submits that each party should pay their own costs.
Section 110 of the AD Act gives the Tribunal power to award costs under s 88 of the Tribunal Act. Section 88 states that:
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
In a 2010 decision, after re-iterating the general rule that each party pays their own costs, Basten JA made the following comments about the scope of s 88:
. . . Although an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party. The circumstances in which fairness may be identified are indicated by the specific attributes listed in subs (1A), but subject to the generality of para (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act: AT v Commissioner of Police, NSW [2010] NSWCA 131 at [33].
The nature of the jurisdiction is important. The Tribunal has noted the "chilling effect" of too readily awarding costs against unsuccessful applicants in a jurisdiction which seeks to protect and promote the observance of fundamental human rights: Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [39]. Another aspect of the jurisdiction is that parties, particularly applicants, are often not legally represented and are novices when it comes to legal proceedings in general and liability for costs in particular.
The objectives of the Tribunal Act in s 3 are also relevant. They include:
(b) to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,
NSWPF applied for costs on an indemnity basis both in relation to the proceedings before the Tribunal and those before the Anti-Discrimination Board. According to the NSWPF, if costs are not awarded, it will commence proceedings against Mr Ritson in the Local Court to enforce the indemnity in clause 7(d). The NSWPF submits that the most "efficient and expeditious" method for dealing with costs is through the Tribunal exercising its powers under s 88 of the Tribunal Act in order to give effect to the indemnity in clause 7(d) of the deed. Mr Ritson says that it is appropriate for the Local Court to determine any dispute about the operation of clause 7(d) because in any such proceedings he would cross-claim in relation to other purported breaches of the deed.
While the Tribunal has power to award costs, I am not satisfied that costs should be awarded on the basis of clause 7(d) of the deed. Enforcement of the deed is a matter for the courts. This Tribunal should only award costs if it is satisfied that it is fair to do so. The NSWPF submitted that Mr Ritson has unreasonably persisted with his claim despite being told several times that the deed is a bar to the proceedings. Under s 88(1A)(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, is relevant.
Mr Ritson's complaint has been dismissed. But it cannot be said that his complaint had no tenable basis or that it was so weak that it is fair to order costs. The effect of a release on a person's right to bring complaints under the AD Act is not a straightforward area of the law. It is not fair, in all the circumstances, for Mr Ritson to pay the NSWPF costs on any basis.
Orders
1. The NSWPF's application to dismiss Mr Ritson's complaint of victimisation "by refusing to process an application for the National Police Service Medal" is granted.
2. Mr Ritson's application to amend his complaint to include an additional complaint of victimisation "by refusing to process Mr Ritson's application for ex gratia assistance" is refused.
3. Mr Ritson's application to amend his complaint to include an additional complaint of victimisation by "threatening to enforce the indemnity in clause 7(d) of the deed" is refused.
4. The NSWPF's application for costs on an indemnity basis from 31 October 2012 is refused.
Decision last updated: 28 June 2013
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