State of New South Wales (NSW Police Force) v Whitfield (No. 2)

[2012] NSWADTAP 48

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

State of New South Wales (NSW Police Force) v Whitfield (No. 2) [2012] NSWADTAP 48

Hearing dates:

10 September 2012

Decision date:

20 November 2012

Before:

Judge K P O'Connor, President
G Furness SC, Judicial Member
J McClelland, Non-judicial Member

Decision:

1. The appeal is extended to the merits.

2. The complaint is dismissed.

3. There being no application as to costs, no order is made as to costs.

Catchwords:

APPEAL - Whether to extend to merits or remit to first instance - Limited additional evidence - Effect of error of law ruling - Utility - Appeal extended to the merits, and dismissed

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

Cases Cited:

State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27

Category:

Consequential orders

Parties:

State of New South Wales (NSW Police Force) (Appellant)
Keith Whitfield (Respondent)

Representation:

Counsel
M Seck (Appellant)
N Poynder (Respondent)
Henry Davis York (Appellant)
Legal Aid NSW (Respondent)

File Number(s):

119056

 Decision under appeal 

Jurisdiction:

9108

Citation:

Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265

Date of Decision:

2011-11-15 00:00:00

Before:

Equal Opportunity Division

File Number(s):

101068

REASON FOR DECISION

1. The appeal in this matter was decided on 25 July 2012: State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27. The appeal was allowed and the orders of the Tribunal were set aside. Oral submissions were made on 10 September 2012 as to what further orders for the disposal of the proceedings should be made.

1. After the reasons which follow had been prepared in draft, we were advised on 22 October 2012 by his solicitor that the respondent, Mr Whitfield, had died. We drew his solicitor's attention to s 93 of the Anti-Discrimination Act 1977 (AD Act) (death of complainant or respondent does not terminate complaint), and advised that we were minded to publish this decision unless advised otherwise by the solicitor. There has been no reply to that effect. Accordingly these reasons are published for the benefit of the deceased's personal representative and the appellant.

1. As to how the Appeal Panel should now deal with the case, Mr Seck, counsel for the appellant, submitted that there should be no remittal to a Tribunal and that the complaint should be dismissed. He submitted that the Appeal Panel found that the conduct complained of was not unlawful because there was no refusal to provide the respondent with services and nor were those services provided on terms. Further, the appellant submitted that the respondent had the burden of proof in demonstrating causation and the Appeal Panel found that there was an insufficient basis for drawing an inference that the direction made by the Constable was on the ground of age. Hence, causation had not been proved.

1. Counsel for the respondent submitted that the matter should be remitted to the Tribunal as previously constituted on the grounds that the errors identified by the Appeal Panel could be 'dealt with' by the Tribunal. It was submitted that the Tribunal previously constituted could, based on the evidence already called, and in conformity with the findings of the Appeal Panel, characterise the conduct complained of so as to find that a service was refused or offered on terms.

1. It was submitted that, if necessary, the Constable could be recalled before the originally constituted Tribunal and asked questions about his usual practice in attending to neighbourhood disputes. That evidence may then permit an inference to be properly drawn as to the ground on which he made the direction to the respondent.

Consideration

1. The Appeal Panel has found error in the findings of the Tribunal that the services provided by the appellant were refused to the respondent or provided to him on terms.

1. It follows that the applicant at first instance (the respondent on appeal), had not made out his complaint of discrimination on the grounds of age in the area of goods and services.

1. The issues which the respondent has submitted may be remitted to the Tribunal go to the questions of law which have been decided by the Appeal Panel.

1. Were the matter remitted and the Constable recalled and he gave evidence which lawfully permitted a finding that his actions were performed on the grounds of the age of the respondent, that would not cure the finding made by the Appeal Panel that there was no refusal to provide services and nor were they provided on unlawful terms.

1. There has been no appeal as to the procedures followed by the Tribunal such as might give rise to consideration of remittal.

Order

1. The appeal is extended to the merits.

2. The complaint is dismissed.

3. There being no application as to costs, no order is made as to costs.