Wallace v Anti-Discrimination Board of NSW

[1999] NSWSC 1052

CITATION:	Wallace v Anti-Discrimination Board of NSW [1999] NSWSC 1052
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	12016/99
HEARING DATE(S):	11 October 1999
JUDGMENT DATE:	11 October 1999
PARTIES :	Matthew John Wallace - Plaintiff The President, Anti-Discrimination Board of NSW - First Defendant Bailey & Gough Real Estate Pty. Limited - Second Defendant The State of New South Wales - Third Defendant
JUDGMENT OF:	Dowd J

LOWER COURT JURISDICTION:	Anti-Discrimination Board of NSW
LOWER COURT FILE NUMBER(S) :	98/2332
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	Mr P Batley - Plaintiff Ms C Ronalds - Defendants
SOLICITORS:
CATCHWORDS:	Rejection of complaint; Anti-discrimination; Time for referral to Tribunal
ACTS CITED:	Anti-Discrimination Act 1997
CASES CITED:	Jeffrey Button Sales Pty Ltd v Robson & Anor (Hunt J unreported 12 November 1985) David v Nunn (Dunford J unreported 17 October 1995) Attorney General of NSW v Civic Transport Services Pty Ltd Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Brofo v The State of Western Australia & Ors 171 CLR 1 Wang v Minister for Immigration and Multicultural Affairs 71 FCR 386
DECISION:	For Plaintiff

1

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DOWD J

MONDAY 11 OCTOBER 1999

12016/99 - MATTHEW JOHN WALLACE v THE PRESIDENT,
ANTI-DISCRIMINATION BOARD OF NSW AND ORS

JUDGMENT:

HIS HONOUR: 1. By summons the plaintiff Matthew John Wallace ("Wallace") sought a declaration that the first defendant, the President of the Anti-discrimination Board of NSW ("the President") erred in law in concluding that the President had not received a written request from Wallace within the meaning of s91(1) of the Anti-discrimination Act 1997 ("the Act"), or alternatively, a declaration that a letter dated 14 January 1999 from Wallace to the President constituted notice in writing, requiring the President to refer Wallace's complaints to the Administrative Decisions Tribunal ("the Tribunal") within the meaning of the Act, and further sought an order that the President refer Wallace's complaint to the Tribunal.
2. These proceedings arise out of a complaint against the second defendant, Bailey and Gough Real Estate Pty Ltd, and the NSW Police Service and another organisation, alleging discrimination against Wallace in the proposed letting of premises in the Coffs Harbour area. After some correspondence and communication of replies to the complaint by the varying parties, the President determined that the complaint was lacking in substance in terms of s 90(1) of the Act.
3. In a letter dated 16 December 1998 forwarded to Wallace at his home address the President set out his reasons for his determination, and advised Wallace that if he, Wallace, wished his complaint forwarded to the Tribunal:
“You must write to me and tell me to do this within 21 days of the date of this letter. If you do not write to me by this date you will lose your right to take this matter to the Tribunal and your file will be closed.”

The letter then set out other information including the address of the Tribunal.
4. Mr Wallace's unchallenged evidence is that about 5pm on 24 December 1998 he opened the letter dated 16 December 1998 from the President. Wallace said in his affidavit "I do not have a copy of the letters" that he received, there being two letters in an envelope. In evidence before me is a letter which purports to be a copy of that sent by the President to Wallace, which bears a date stamp marked "received Coffs Harbour 24 December 1998, Legal Aid”. In answer to a question from me, counsel for the President agreed that there was no issue that the letter was received by Wallace on the same day as the letter received by Legal Aid, and there is no issue that Legal Aid received the letter on 24 December 1988.
5. Wallace, by fax dated and transmitted on 14 January 1999, required the complaints to be referred to the Tribunal. This was the twenty-first day from 16 December 1998. The President determined that he had no power to refer the complaint for hearing since in his contention the 21 days ran from the date of the letter from the President, namely 16 December 1998, and therefore the time for requiring a referral for hearing expired on 6 January 1999.
6. The issue for determination by this Court is the construction of s90 and s91 of Pt 9 Div 2 of the Act dealing with the functions of the President.
Section 90 provides:
" President may decline to entertain complaint

(1) Where, at any stage of the President’s investigation of a complaint, the President is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President may by notification in writing addressed to the complainant, decline to entertain the complaint.

(2) The President shall, in a notification under subsection (1), advise the complainant of:

(a) the reason for declining to entertain the complaint, and


(b) where section 91(1) applies to the notification - the rights of the complainant under that subsection.”

Section 91 provides:

“ Reference of complaint to Tribunal at requirement of complainant


(1) Where the President has given a complainant a notification under section 89B(4) or 90(1), the complainant may, within 21 days after the date of that notification, by notice in writing served on the President, require the President to refer the complaint to the Tribunal.

(1A) Subsection (1) does not apply to a notification in which the President has given, as a reason for declining to entertain a complaint, that what has been alleged in the complaint does not disclose any contravention of this Act.

(2) On receipt of a notice under subsection (1), the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint."


7. Miss Ronalds, for the President, contends that there is no provision in the Act for extending the 21 days referred to in s91(1), and in that respect relies on Jeffrey Button Sales Pty Ltd v Robson & Anor (Hunt J unreported 12 November 1985) in which his Honour held, in a decision on s118 of the Act relating to an appeal, that there was no provision in the Act for an extension of the period of 21 days and that the Supreme Court does not have the power to extend that time. In effect there is a clear legislative intention that the 21 days is a fixed time and not capable of extension.
8. In David v Nunn (unreported 17 October 1995) Dunford J applied that decision, holding that the 21 days referred to in s118 is mandatory. A determination of the Equal Opportunity Board, referred to the court by Miss Ronalds for completeness, not as authority, in a case relating to s91(1) of the Act, applied the two above unreported decisions as applying to s91, in the same way as s118 of the Act.
9. I was also referred to Attorney General of NSW v Civic Transport Services Pty Ltd , a decision on s101(1) of the Justices Act 1902, which reaffirms the view, particularly as enunciated in that case by Sheller JA, that there being no extension of time sought within the 35 days allowed for an application under s101 of the Justices Act to state a case, that period is mandatory.
10. I can find no possibility of any interpretation of the Act other than as held above, and agree with the matters put by Miss Ronalds that the 21 day period for appeal is mandatory and cannot be varied. This application, however, is not an application for an extension of time but seeks a declaration which requires the interpretation of the meanings of the sections I have set out above.
11. Section 90 of the Act, in examining the complaint, provides that if the President is satisfied that a complaint is frivolous and vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, the President has a discretion “by notification in writing addressed to the complainant" to decline to entertain the complaint. Section 90 then prescribes the requirement to set out reasons for declining the complaint and the rights of the complainant.
12. Section 91 gives the complainant a right, within 21 days "after the date of that notification, by notice in writing served on the President,” to “require the President to refer the complaint to the Tribunal”. Section 91(1) clearly requires service on or before the twenty first day from the date of notification.
13. Mr Batley, Solicitor for Wallace, has referred me to the second revision of the Maquarie Dictionary and the definition of "notification" which, omitting technical derivations of the word, provides a primary meaning of "the act of notify, making known or giving notice”, and a secondary meaning of "a formal notifying or informing”. The third meaning is "a notice”. The various meanings of “notice” in that dictionary connote, as does the definition of “notification”, the receipt of knowledge or the bringing to attention of the recipient.
14. Mr Batley also refers the court to the New Shorter Oxford English Dictionary Volume 2 published in 1993 which provides as a primary meaning “the action or an act of notifying something; intonation, a notice”. The examples, however, cited in the latter dictionary, appear to advert to the publication of notification rather than the fact of receipt of notification.
15. It is put by Mr Batley that the Court should give a purposive interpretation in what is an act protecting the interests of human rights, and relies on Kingston v KeprosePty Ltd (1987) 11 NSWLR 404, in particular at page 423:
“ The purposive approach

A purposive and not a literal approach is the method of statutory construction which now prevails: cf Fothergill v Monarch Airlines Ltd (1981) AC 251 at 272-273, 275, 280, 291. In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1902 (Cth), s 15AA, and the Interpretation Act 1987 (NSW), s 33, both require this approach to statutory construction. The companies legislation has its own direction to this effect. The Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980, s 5A, enacts:

‘In the interpretation of a provision of a relevant Act, a construction that would promote the purpose or object underlying the relevant Act (whether that purpose or object is expressly stated in the relevant Act or not) shall be preferred to a construction that would not promote that purpose or object.’”

I also refer in that decision to a passage also on page 423:
"purposive construction often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgment as to where the boundary of construction ends and legislation begins. But it is the technique best calculated to give effect to the legislative intention and to deal with the detailed and diverse factual patterns which the legislator cannot always foresee but must have intended to deal with if the purpose of the legislation was to be achieved."

16. I am then referred to the decision in Brofo v the Stateof Western Australia and Ors 171 CLR 1, and in particular the majority decision at page 20:

"Indeed, the contemporary approach to statutory construction, with its added emphasis on legislative purpose (see e.g. Kingston v Keprose Pty Ltd 118 (1987) 11 NSWLR 404 at pages 421, 422) and permitted reference to a range of extrinsic material for the ascertainment of that purpose … has added an element of anachronism to a judicial confinement of the permissible basis for discerning a legislative intent that the Crown be bound to what is ‘manifest from the very terms of the statute’."

17. I have also been referred to a decision of the Victoria Federal Court of Wang v Minister for Immigration andMulticultural Affairs 71 FCR 386. At page 394, citing Bennion on Statutory Interpretation :

"a construction will not be allowed which would enable persons charged with a statutory power or function to act in such a way as to truncate or otherwise modify what the legislature intended.”
Then:

“the real point being made is that where a judge concludes that the legislature could not have intended that a statute could operate in a manner which defeats its manifest object or purpose, then an alternative interpretation must be preferred. There is a substantial body of authority that supports that approach.”


18. In further aid of interpretation Mr Batley relies on the Hansard debate, page 343 of Hansard on the second reading speech of the Premier who introduced the Bill, where he said that the intention is that the appellant be advised of the reasons for declining, and Mr Batley submits that the intention is that the advice be received.
19. In looking at the word "notification" in s 90 one can examine the fact that the legislature has chosen not to say "by letter" but says “by notification in writing”, and in s91 the words used are "given a complainant a notification”. As I have indicated, I can see no basis for extending the 21 day period, or there being any power to extend that period. However, the 21 day period is from the date of "that notification”. That is referring to the word “notification” in s91(1) of the Act, which is part of a sentence which has the words "has given", the object of that being “a notification”.
20. It seems to me that the clear intention of the Act was to prescribe a specified period for request, but that it must commence from the actual receipt of notification. The word "notification" imports the receipt of notice, the matter being brought to the attention of the person being notified. The word “notification” is in the context of the Act intended that the very strict period commence from actual notification. In the present proceeding there is no issue and, therefore, in my view in the terms of the Act the notification occurred on 24 December 1998 by the receipt of the letter of 16 December 1998 which was addressed to the complainant.
21. Notification, therefore, can occur by personal service, by hand delivery to the complainant's address, or by the actual receipt of a letter on a particular day. Particularly over the Christmas period where mails may be a little slower and where there can be an extended period of public holidays, and at Easter where delays can create a similar problem, this may well deprive a person of the opportunity to have 21 days within which to consider and lodge by that twenty-first day a challenge to the President's determination, and thereby request referral of the complaint to the Tribunal.
22. It is in my view not appropriate for someone, by moving home or failing to go to a letter box for a protracted period, to say "well I have not received notification because I didn't open the letter" or "I didn't go to my letter box" or "mail was not forwarded to me”. The statute countenances written notice "addressed to the complainant", meaning “sent to the complainant at a notified address”, and receipt must be the receipt in effect at the letter box of the complainant in the normal course. The Interpretation Act 1997 , which does not here apply because that Act is relevant where an Act prescribes documents being served by post, provided for service on the fourth working day after the letter was posted, which does less than service to a fairly modern effective postage service in which service on the next day is more the norm than the exception.
23. It is not open to the President to date a letter which may not be posted for a couple of days, for administrative reasons, to deprive a plaintiff of a rigid fixed 21 day period or part of a fixed 21 day period, and in this respect I make no complaint against the President or the Board, since I only refer to the fact that in any bureaucracy there may be some few days delay. I am conscious that it becomes very easy for a person to allege that a letter was not received on a particular day in order to gain advantage of an extended period, and it is fairly easy even, one has to sadly note, for people to allege on oath that they did not receive the document, when in fact they have received it.
24. It seems to me desirable that in order to give effect to the spirit of the legislation there should be a deeming provision placed in the Act deeming service to be, for example, the second business day after postage of a notification. However, to give purpose to an Act which deals with complaints very often made by unqualified persons, which has a rigid period which cannot be extended, it clearly cannot be the legislative effect that the vagaries of public holidays or some administrative loss of a few days might deprive a person of some part of a limited period in which to exercise a referral of a rejected complaint.
25. I consider, therefore, that the effect of s90 and s91 is that the use of the words "notification in writing addressed to the complainant” connotes a letter being received in the normal course of post or after delivery to that recorded address, and that the placing of that letter in the letter box by either means commences the 21 day period, and that a person cannot elect not to open mail, as I have been disturbed to find some people do, or to not take mail from a letter box, or to not arrange the mail to be collected during their holiday period.
26. Notice by mail is a more difficult matter to deal with and could be more precisely dealt with by the deeming provision which I have suggested, but in the absence of such a provision it seems to me that the 21 day period should not be from the date of the letter, which clearly if posted, even if received the next day, provides only 20 days, but that it should be from receipt in the normal course of post, which is a matter which is provable by evidence but constitutes an issue of fact. The intention of the Act is to give a substantive period, not one which can be arbitrarily shortened.
27. I therefore make the following orders:
(1) that the first defendant erred in law in concluding that the first defendant had not received a written request from the plaintiff within the meaning of s91(1) of the Anti-discrimination Act 1997.
(2) that the first defendant refer the plaintiff's complaints to the Administrative Decisions Tribunal within the meaning of s91(1) of the Anti-discrimination Act 1991.
(3) I order that the first defendant pay the plaintiff's costs.

28. It is clearly desirable that the President have the opportunity to contest the decision. I grant a stay of that determination for 21 days.

-o0o-

Last Modified: 10/27/1999