Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board

[2014] NSWCA 372

Court of Appeal

New South Wales

Case Title:

Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board

Medium Neutral Citation:

[2014] NSWCA 372

Hearing Date(s):

23 October 2014

Decision Date:

31 October 2014

Before:

Emmett JA at [1];
Gleeson JA at [2]

Decision:

1. Grant the applicant an extension of time within which to file and serve the summons seeking leave to appeal to 31 July 2014.

2. Leave to appeal refused.

3. Applicant to pay the respondent's costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - Applications - Leave to appeal against dismissal of summons seeking judicial review of failure of the respondent to refer a complaint to the Administrative Decisions Tribunal - Whether leave should be granted - Whether applicant has suffered from an injustice which is reasonably arguable - Decision of the President of the Anti-Discrimination Board to decline to accept a complaint pursuant to s 89B(2)(b) Anti-Discrimination Act 1977 where the conduct complained of occurred more than 12 months earlier - Whether complaint should have been referred to the Tribunal - No error in primary judge finding that the Tribunal has no power to review decision to decline a complaint under s 89B - Limitation Act 1969 irrelevant to decisions made under s 89B(2)(b)

Legislation Cited:

Anti-Discrimination Act 1977 (NSW) ss 4, 49B, 49L, 87A, 89B, 90, 91, 92, 93A, 93B, 93C, 95, 96, 108
Civil and Administrative Tribunal Act 2013 (NSW) Schedule 1
Limitation Act 1969 (NSW) ss 11, 14, 52, 78
Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
McMahon v Permanent Custodians Ltd [2013] NSWCA 275
O'Brien v O'Brien (1995) 35 NSWLR 664
Sharpe v Heywood [2013] NSWCA 192
Shrayer v Anti-Discrimination Board of NSW [2008] NSWSC 1036

Category:

Principal judgment

Parties:

Paul J Wecker (Applicant)
The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board (Respondent)

Representation

- Counsel:

Counsel:
Applicant self-represented
K Sanders, Crown Solicitor (Respondent)

- Solicitors:

Solicitors:
Applicant self-represented
I V Knight, Crown Solicitor (Respondent)

File Number(s):

2014/230197

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Schmidt J

- Date of Decision: 

04 April 2014

- Citation:

Wecker v The Delegate (the decision maker) to the President) Mr S Kerkyashrian) of the NSW Anti-Discrimination Board [2014] NSWSC 386

- Court File Number(s):

2013/387403

JUDGMENT

1. EMMETT JA: I have had the advantage of reading in draft form the proposed reasons of Gleeson JA. I agree with his Honour, for the reasons proposed, that leave should be refused. In particular, I agree that Mr Wecker's attempt to invoke s 52 of the Limitation Act1969 (NSW) (the Limitation Act) is misconceived. Further, I agree that the Guideline referred to by Gleeson JA is not a contract, let alone a "recognizance" within the meaning of that term when used in s 14 of the Limitation Act. The application for leave should be refused with costs.

2. GLEESON JA: This is an application by Mr Wecker, the plaintiff in the Court below, for leave to appeal against a decision of Schmidt J given on 4 April 2014 dismissing Mr Wecker's summons filed on 27 December 2013 seeking orders by way of judicial review against the respondent under s 69 of the Supreme Court Act 1970 (NSW). By his summons Mr Wecker had sought orders requiring complaints which he made in July and August 2013 under s 87A of the Anti-Discrimination Act 1977 (NSW) against the University of New South Wales, which the respondent had decided to decline, to be listed for leave to appeal to the Administrative Decisions Tribunal (Tribunal).

3. It should be noted that on 1 January 2014 the Tribunal was abolished (Sch 1, Pt 2, cl 3 of the Civil and Administrative Tribunal Act 2013 (NSW)). Thereafter for the purposes of the Anti-Discrimination Act, references to the "Tribunal" are now taken to mean the "Civil and Administrative Tribunal" (NCAT) established under the Civil and Administrative Tribunal Act (Sch 1, Pt 2, cl 17(3)).

4. As the application to this Court is out of time, Mr Wecker also seeks an extension of time in which to file his summons seeking leave to appeal. The respondent does not oppose an extension of time. It is appropriate to grant such leave in circumstances where the applicant is self-represented and the extension is not opposed.

Background

1. The circumstances giving rise to the application in this Court may be briefly summarised as follows. In 2013 Mr Wecker made two complaints to the President of the Anti-Discrimination Board. Mr Wecker's complaints concerned the University's refusal in June 2010 and March 2011 to allow him to complete a course he was undertaking (which would qualify him to teach English at high school). This followed complaints having been made to the University about Mr Wecker during a teaching placement at a high school which he undertook as part of that course. The University had required him to provide evidence of his suitability to teach before he would be permitted to continue this aspect of the course.

2. It is unnecessary to go into the details of the complaints which had been made about Mr Wecker to the University. It is sufficient to observe that Mr Wecker's case was that the University had unlawfully discriminated against him on the ground of disability, thus preventing him from earning a living as a high school teacher. The alleged disability was said to be presumed mental illness ([20]-[21] draft notice of appeal, WB p 37).

3. Following receipt of the complaints by Mr Wecker, a conciliation officer at the Anti-Discrimination Board contacted Mr Wecker by letter and requested further information regarding the complaints. The officer also enclosed a copy of s 89B and highlighted the possible application of s 89B(2)(a) or (b) of the Anti-Discrimination Act and the possibility that without further information the complaint might be declined. Mr Wecker provided a response (see WB, pp 37-38 and 42-43).

4. Subsequently, on 21 August 2013, the complaints were declined by the President pursuant to s 89B(2)(b) of the Anti-Discrimination Act. This provision provides that the President may decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint. There is no issue that this condition was satisfied.

5. Section 89B(4) of the Anti-Discrimination Act provides that a decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.

Primary judge's reasons

1. The primary judge noted (at [5]) that Mr Wecker had explained, in his oral submissions, that what he sought was not a review of the refusal of his complaints, which is prohibited by s 89B(4) of the Anti-Discrimination Act, but that they be referred to a judicial member of the Tribunal to be dealt with under its "normal protocols". Mr Wecker contended that he had a legitimate expectation that the Tribunal would deal with the "dismissal" of his complaint by the President because of what was contained in the Tribunal's "Equal Opportunity Division: Guideline" - Part 6 "Declined complaints".

2. The primary judge rejected this contention and found that the guidelines and procedures could only apply to matters properly brought before the Tribunal, and which it was given a statutory power to deal with: at [54]. Her Honour found that there was no power to refer Mr Wecker's complaints to the Tribunal because a review of the decision of the President to decline his complaints was prohibited by s 89B(4) of the Anti-Discrimination Act: at [54]-[55]. In reaching this conclusion, her Honour (at [62]) expressed her agreement with the obiter statement in Shrayer vAnti-Discrimination Board of NSW [2008] NSWSC 1036 at [25], that the legislature plainly intended that a decision declining a complaint under s 89B would be final and beyond challenge.

3. The primary judge also considered and rejected a number of other arguments raised by Mr Wecker to the effect that the dismissal of his complaint involved an error of law, including arguments based on the Limitation Act 1969 (NSW), in particular, that s 52(1) suspended that 12 month period referred to in s 89B(2)(b) of the Anti-Discrimination Act whilst ever Mr Wecker was subject to a disability, which he had contended had been the case.

4. Section 52(1) of the Limitation Act relevantly provides:

   "Disability
   (1) Subject to subsections (2) and (3) and subject to section 53, where:

   (a) a person has a cause of action,

   (b) the limitation period fixed by this Act for the cause of action has commenced to run, and

   (c) the person is under a disability,

   in that case:

   (d) the running of the limitation period is suspended for the duration of the disability, and

   ...

   (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period."

5. The expression "disability" is defined in s 11(3) of the Limitation Act as follows:

   "For the purposes of this Act a person is under a disability:

   (a) ...

   (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of:

   (i) any disease or any impairment of his or her physical or mental condition,

   ...".

Draft notice of appeal

1. In his draft notice of appeal, Mr Wecker relies on three appeal grounds supported by numerous contentions. These were all directed to the proposition that where the complainant is under a disability, then s 52(1) of the Limitation Act, which postpones the running of time against persons under a disability until the disability ceases, limits the discretion of the President to decline complaints under s 89B(2)(b) of the Anti-Discrimination Act on the ground that the conduct complained of occurred more than 12 months before the making of the complaint.

2. The relevant cause of action, in respect of which the running of time was said to be postponed under s 52(1) of the Limitation Act, was Mr Wecker's cause of action constituted by his summons against the Delegate to the President of the New South Wales Anti-Discrimination Board which sought an order in the nature of mandamus to compel the Delegate to refer Mr Wecker's complaints to the Equal Opportunity Division judicial member of NCAT.

3. Alternatively, Mr Wecker contended that the relevant cause of action was an action to enforce a recognizance, as referred to in s 14(1)(c) of the Limitation Act, because the Delegate to the President had failed to refer Mr Wecker's complaints to the Tribunal according to what Mr Wecker contended was the customary practice outlined in the Tribunal's "Equity Opportunity Division: Guideline" Pt 6 - "Declined complaints" (the Guideline). Mr Wecker argued that a recognizance included a contract, and the Guideline was a contract binding on the President.

4. Mr Wecker contended that these provisions of the Limitation Act apply to the Anti-Discrimination Act, in particular s 89B, because s 78 of the Limitation Act provides that the Limitation Act is a substantive law of the State of New South Wales.

Relief sought

1. In his draft notice of appeal, Mr Wecker seeks various forms of relief, including:

   ·an order quashing the decision of the Delegate to the President of the Anti-Discrimination Board;

   ·an order in the nature of mandamus compelling the Delegate to the President of the Anti-Discrimination Board to refer Mr Wecker's complaints to the Equal Opportunity Division judicial member of NCAT. (As already mentioned, NCAT is the successor to the Tribunal.)

Principles for grant of leave

1. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Further, ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well-established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].

Consideration

1. Here there is no issue of principle or question of general importance. The statutory regime governing the making of a complaint to the Anti-Discrimination Board alleging unlawful discrimination is determined by the Anti-Discrimination Act not the Limitation Act. To explain why this is so, it is necessary to first briefly describe the legislative scheme for making and dealing with complaints of discrimination under the Anti-Discrimination Act.

The legislative scheme for making and dealing with complaints

1. The Anti-Discrimination Act makes it unlawful for particular persons, entities, or other bodies to discriminate against another person on various grounds, including on the ground of disability.

2. Conduct which constitutes discrimination on the ground of disability is defined in s 49B. In the context of education it is unlawful for an "educational authority" to discriminate against a student on the ground of disability by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority: s 49L(2)(a). An educational authority is defined to include a body administering a university: s 4(1).

3. Division 2 of Pt 9 of the Anti-Discrimination Act headed "Complaints - the functions of the President" deals with the making of complaints and how they are to be dealt with by the President. A person alleging that another person has contravened a provision of the Anti-Discrimination Act or the regulations (other than a provision for which a specific penalty is imposed) may make a complaint on his, her, or their own behalf: s 87A(1)(a)(i).

4. The scheme of the complaints procedure draws a clear distinction between the making of a complaint (subdiv 2 of Div 2 of Pt 9), the investigation and conciliation of complaints (subdiv 3 of Div 2 of Pt 9), the declining of complaints during investigation (subdiv 4 of Div 2 of Pt 9), the termination of complaints (subdiv 5 of Pt 9), the referral of complaints to the Tribunal (subdiv 6 of Pt 9), and the dealing with complaints which have been referred to the Tribunal (under Div 3 of Pt 9).

5. At the anterior point of the making of a complaint, it is the President who determines whether or not a complaint is to be accepted or declined: s 89B(1). The grounds on which the President may decline a complaint are listed in s 89B(2). They include that the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint: s 89B(2)(b). As already mentioned, a decision of the President to decline a complaint in whole or in part is not reviewable by the Tribunal: s 89B(4).

6. Where the President has accepted a complaint under s 89B, the President is to investigate the complaint: s 90(1). However the President may subsequently decline the complaint, or part of the complaint, during the investigation stage if satisfied of particular matters. These include that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that is not in the public interest to take any further action: s 92(1).

7. If the President declines a complaint during the investigation stage, notice must be given advising the complainant of the reason for declining the complaint, and of the complainant's rights under ss 93A and 96: s 92(2). Under s 93A the complainant may, within 21 days after the date on which such a notice is given, require the President, by notice in writing, to refer the complaint to the Tribunal.

8. A qualification arises under s 96(1) which provides that a complaint that is referred to the Tribunal on the requirement of a complainant under s 93A(1), but not including a complaint to which s 91(2) applies, may not be the subject of proceedings before the Tribunal, without the leave of the Tribunal: s 96(1).

9. The power of referral of "declined" complaints to the Tribunal under s 93A, subject to the leave requirement in s 96(1), is only engaged if the complaint has previously been accepted by the President under s 89B. (I would add that although the guidelines might have been better expressed, it is tolerably clear that Pt 6 "Declined complaints" of the Guideline relates to complaints which the President may decline during the investigation stage.)

10. There are other circumstances in which the President is required to refer a complaint to the Tribunal. Section 93B deals with the referral of unresolved complaints, that is, complaints which have not been declined, terminated, or otherwise resolved within 18 months after the date on which it was made. Section 93C deals with referral of complaints to the Tribunal in other circumstances. Neither of these provisions is presently relevant.

11. Where a complaint has been referred to the Tribunal by either the President, or on the requirement of a complainant under s 93A, with the leave of the Tribunal, the Tribunal may dismiss the complaint in whole or in part, or find the complaint substantiated in whole or in part: s 108(1). If the Tribunal finds the complaint substantiated in whole or in part, it may do a number of things including order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, except in respect of a matter referred to the Tribunal by the Minister under s 95(2): s 108(2)(a).

12. It may be observed that there is no statutory time bar to the making of a complaint under the Anti-Discrimination Act. Rather, the President has a discretion whether to accept or decline a complaint. In exercising that discretion, the President may decline a complaint, amongst other reasons, if the whole or part of the relevant conduct complained of occurred more than 12 months before the making of the complaint: s 89B(2)(b).

Limitation Act does not apply

1. In my view, Mr Wecker's attempt to invoke the Limitation Act, in particular s 52(1), is misconceived.

2. First, the six year limitation period fixed by s 14(1) of the Limitation Act, in respect of the causes of action dealt with by that provision, has no application to the making of a complaint under s 87A of the Anti-Discrimination Act, or the decision of the President under s 89B(1) to accept or decline a complaint. The right conferred by statute to make a complaint to the President concerning unlawful discrimination cannot be equated with the commencement of an "action" on any of the identified causes of action mentioned in s 14(1) of the Limitation Act.

3. Further, contrary to Mr Wecker's contentions, the Guideline is not a contract, let alone a "recognizance", within the meaning of that expression in s 14(1)(c) of the Limitation Act. It is unnecessary to explore in any detail the meaning of the word "recognizance". It is sufficient to note that it is generally taken to refer to an obligation or bond acknowledged by a person before a Court or authorised officer, and afterwards enrolled in a record of the Court. The object of a recognizance is to secure the performance of some act by the person bound by it, such as to appear in court, to keep the peace, or to be of good behaviour.

1. The Guideline issued by the Tribunal does not in any way bear the character of a recognizance. The alleged breach of the Guideline by the President in failing to refer the "declined" complaint to the Tribunal could never give rise to a cause of action to enforce a recognizance as referred to in s 14(1)(c) Limitation Act.

2. Secondly, s 52(1) of the Limitation Act only applies to limitation periods fixed by the Limitation Act: O'Brien v O'Brien (1995) 35 NSWLR 664 at 665F (Handley JA; Priestley and Sheller JJA agreeing). This follows from the express terms of s 52(1), which only postpone "the running of the limitation period ..." against persons under a disability until the disability ceases, where "the limitation period fixed by this Act for the cause of action has commenced to run".

3. Accordingly, the contention that s 52(1) of the Limitation Act limits or confines the President's discretion under s 89B is untenable.

No power in the Court to compel the President to refer Mr Wecker's complaints to NCAT

1. Mr Wecker's submissions did not identify any provision in the legislative scheme contained in the Anti-Discrimination Act which would empower the Court to compel the President to refer Mr Wecker's complaints to NCAT. Instead, Mr Wecker referred to Pt 6 (Declined complaints) of the Guideline. The contention that the Guideline is a recognizance, and that the failure to refer Mr Wecker's "declined" complaint to the Tribunal afforded Mr Wecker a cause of action of the type referred to in s 14(1)(c) of the Limitation Act "to enforce a recognizance", has been considered and rejected above.

2. It is otherwise sufficient to observe that whatever the status of the Guideline, the jurisdiction of the Tribunal and the power of the President to refer matters to the Tribunal are determined by reference to the terms of the Anti-Discrimination Act itself, not guidelines issued by a division of the Tribunal.

3. Moreover, for the reasons given above, the relevant part of the Guideline - Pt 6 (Declined complaints) - is properly to be understood as intending to address a different subject matter, namely, the circumstances where, during the investigation stage of a complaint which had been previously accepted by the President, the President subsequently declines the complaint on one of the grounds specified in s 92(1) of the Anti-Discrimination Act.

4. In my view, it cannot be said that Mr Wecker has suffered an injustice, let alone an injustice which is reasonably arguable. The legislative scheme in s 89B is directed to how a complaint is to be dealt with when first lodged with the President. The clear intent of the legislative scheme is that the Tribunal has no power to deal with complaints that have been declined by the President under s 89B. This is what occurred in the present case and that is the end of the matter.

Conclusion and orders

1. In my view, an extension of time for leave to appeal should be granted, but leave to appeal should be refused. There is no reason to displace the ordinary rule that costs follow the event.

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