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Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 19
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ADMINISTRATIVE DECISIONS TRIBUNAL PRACTICE NOTE NO. 19 Equal Opportunity Division: Practice and Procedure 1. Purpose and objectives This Practice Note sets out the procedure that the Tribunal will follow for complaints referred by the President of the Anti-Discrimination Board or the Attorney General to the Equal Opportunity Division of the Tribunal. This Note replaces Practice Note No 2, which was repealed on 30 June 2004. The referral of a complaint is taken to be an application for an original decision under the Administrative Decisions Tribunal Act 1997. The Tribunal’s objectives include acting as quickly as is practicable, ensuring that all relevant material is disclosed to the Tribunal and ensuring that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. The procedures in this Practice Note reflect relevant requirements of the Anti-Discrimination Act 1977 and the Administrative Decisions Tribunal Act. It also contains other requirements made in the exercise of the Tribunal’s general power to determine in its own procedures. (See s 73(1) of the ADT Act.) 2. Interim orders The President of the Anti-Discrimination Board or a complainant or respondent to a complaint that has been lodged with the Board, may apply to the Tribunal for an interim order to preserve the status quo or the rights of the parties or to return the parties to the same circumstances that existed prior to the alleged discrimination. The President or the party must complete an application for interim order and serve a copy on the other parties to the complaint. The Tribunal will then arrange a time for the application to be heard. There is no automatic right of appeal to the Appeal Panel against the Tribunal’s decision in relation to an interim order. An applicant must first obtain the Appeal Panel’s permission (obtain “leave”) before proceeding with an appeal. 3. Referral The President of the Anti-Discrimination Board may either decline a complaint or accept it. If a complaint is declined for certain reasons, the applicant may still require the President to refer the complaint to the Tribunal. 4. Permission needed to proceed in some circumstances The Tribunal needs to give the applicant permission (grant leave) before a declined complaint can proceed: s 96(1) of the Anti-Discrimination Act. Where such a complaint is referred, it will be listed before a single Judicial Member of the Tribunal to consider whether leave to proceed should be granted. That Judicial Member will determine whether or not to grant leave on the basis of the content of the complaint, any other material provided by the President and the submissions of the parties. Normally, applicants will not be given permission to file further evidence in support of their complaint at that stage. If leave to proceed is granted, then the Tribunal will make further directions. Those directions may relate to mediation, the filing and service of further material and the listing of the matter for a first case conference. If leave is refused, then the complaint will be dismissed. There is no right of appeal to the Appeal Panel against a decision of the Tribunal to refuse to grant leave in these cases. 5. Case management In general, all referred complaints (other than those refused leave) will be managed through case conferences. Case conferences are unrecorded meetings with the parties and a Judicial Member. The Judicial Member who conducts the case conferences will not necessarily be part of the panel of members who hears the case. One purpose of the case conference is to enable the parties to discuss the complaint in a relatively informal way. Those discussions may lead to the resolution of the complaint or, at least, to fewer issues being in dispute. The Judicial Member will explain the Tribunal’s procedures to the parties and make directions for the filing and service of statements and other relevant material. The Judicial Member may confer informally with the parties in an effort to resolve the complaint. If that happens, a party may object to the member continuing to deal with the complaint. The objection must be lodged with the Registry within 14 days of the conclusion of the case conference. A new member will be appointed. When the matter is ready for hearing, hearing dates will be allocated and a panel of three members assigned to hear the case. 6. First case conference 6.1 Summary of complaint form. At the first case conference the Judicial Member will complete a ‘Summary of Complaint’ form in consultation with the parties. The Judicial Member will provide a copy of the form to each party on completion of the case conference. The form is not binding on the parties. If a party wishes to change any of the information on the form then they should contact the other party. If there is no objection to the change then an amended form should be provided to the Tribunal. If there is an objection to the change, the party may wish to apply to the Tribunal to amend the summary. 6.2 Amendments to the complaint. The Tribunal may amend the complaint itself at any time either on the application of a party or on its own motion. If the complaint is amended then the Tribunal will need to change the Summary of Complaint form and the parties will need to change the Points of Claim or Points of Defence if those documents have been filed. 7. Legal representation A corporation is entitled to appear by a director, the secretary or an agent including a legal practitioner. An individual is entitled to appear in person but if he or she wishes to be represented by an agent, including a legal practitioner, that party must apply to the Tribunal for leave to be represented: s 98 Anti-Discrimination Act. In relation to complaints against government departments, the Director General is the respondent and that person must apply for leave to be represented. Such applications are interlocutory matters and can be determined by a member at a case conference. 8. Legal advice and/or representation for unrepresented parties At the first case conference the parties will be given an opportunity to make an appointment to see a duty solicitor from the Legal Aid Commission. This appointment should normally be made after the first case conference and prior to any mediation or second case conference. The duty solicitor will be able to give a party preliminary legal advice. If a party is eligible for legal aid, he or she can apply through the duty solicitor. Registry officers can also help parties find ways to obtain legal advice and/or representation. 9. Mediation At the first case conference the parties may be referred to mediation if the case is an appropriate one for mediation and the parties consent. If possible, a date, time and venue for the mediation will be allocated at the first case conference. (See Practice Note No. 16 for more detail in relation to the Tribunal’s mediation policy.) 10. Legal basis for the complaint The Judicial Member will discuss the legal basis for the complaint with the parties at the first case conference and attempt to identify the precise provisions of the Anti-Discrimination Act which are relied upon by all parties. If parties are legally represented, and Points of Claim and Points of Defence would be useful because of the complexity of the matter, the Judicial Member may direct that those documents be filed. 11. Evidence to be relied upon The Judicial Member will ask the parties to identify the witnesses and the documents on which they intend to rely. Members may discuss what has to be proved and assist the party to identify evidence that would be relevant to prove each element of the alleged breach. 12. Summonses The procedure for issuing summonses in the Equal Opportunity Division is dealt with in Practice Note No. 7. Parties need to obtain permission from the Judicial Member before applying to the Registrar for a summons to be issued. 13. Preparation for hearing At the first case conference, the Judicial Member will generally make directions for the filing and service of statements and documents. Those directions will come into effect straight away, or if the parties have consented to mediation, after the conclusion of the mediation if the matter does not settle. The applicant will normally be given a maximum of 28 days to file and serve witness statements and any other documentation on which he or she relies. Similarly the respondent/s will normally be given a further 28 days to file and serve their material. Where necessary, a further short period will be given to the applicant to file and serve any material in reply to the respondent’s material. In complex cases more time may be allowed. In cases where there is doubt about the nature or scope of the applicant’s complaint, the Judicial Member may schedule a second case conference before directing the respondent/s to file and serve material in reply. 14. Compliance with directions All parties are expected to comply with the directions of the Tribunal. If a party cannot comply with directions within time, then that party should contact the other parties to seek their agreement on an amended timetable, as long as that timetable does not interfere with the hearing date. If a party does not consent to a revised timetable, or if the changes affect the hearing date, the party in breach of the directions should contact the Tribunal before the time for complying with the directions has expired. A party who fails to comply with directions, or who fails to contact the Tribunal as outlined above, without a reasonable excuse, may not be able to rely on material that is eventually filed. In addition, a party who fails to comply with directions or causes the proceedings to be adjourned, may be ordered to pay costs. (See Practice Note No. 12 on Costs.) 15. Further case conferences and hearings In general, following the date that the timetable is due to be completed, a second case conference will be held. Further case conferences may be necessary depending on the complexity of the complaint. The Judicial Member will ensure that the matter is ready for hearing before allocating hearing dates. 16. Applications under s 102 Under s 102 of the Anti-Discrimination Act, the Tribunal may dismiss a complaint at any stage of the proceedings on the following grounds: If a respondent applies for the complaint to be dismissed because it is lacking in substance then the appropriate time to hear that application will generally be after all the applicant’s evidence has been filed and served. If a respondent applies for the complaint to be dismissed because it does not disclose a contravention of the Anti-Discrimination Act, because the Tribunal does not have jurisdiction to hear it, or because it is frivolous, vexatious or misconceived, that application will normally be heard prior to any timetable being set for the filing and service of statements or documents. The Tribunal may dismiss a complaint under s 102 of its own motion. If the Tribunal is contemplating making such an order, each party will be notified and given an opportunity to make submissions at a hearing. 17. Registration of Conciliation Agreements If a party to a conciliation agreement made at the Anti-Discrimination Board has not complied with that agreement, the other party may apply to the Tribunal for the agreement to be registered. The effect of registration is that the agreement can be enforced as an order of the Tribunal. The pre-conditions to an order being made for the registration of an agreement are: The respondent to the application is to complete a Response to the application and give a copy to the Tribunal and the applicant before the hearing date. If an affidavit of service has been filed with the Tribunal and the respondent does not attend the hearing, then the application may be dealt with in the absence of that party. Issued 22 July 2005 Judge KEVIN O’CONNOR President |
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