Abbott Australasia Pty Ltd v Human Rights and Equal Opportunity Commission
[1999] FCA 427
•14 APRIL 1999
FEDERAL COURT OF AUSTRALIA
Abbott Australasia Pty Ltd v Human Rights & Equal Opportunity Commission [1999] FCA 427
HUMAN RIGHTS – Sex discrimination – Complaint of discrimination on the ground of possible pregnancy – Complaint referred to Human Rights and Equal Opportunity Commission but complainant died before hearing of inquiry – Power of Commission to join parties – Whether a new party may become the “complainant” or the “respondent”.
Sex Discrimination Act 1984, ss 5, 22, 50, 62, 64 and 81.
ABBOTT AUSTRALASIA PTY LTD v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION, ALYSCHIA DIBBLE, LYDIA STEPHENSON – REPRESENTING THE INTEREST OF ALYSCHIA DIBBLE and ST VINCENT’S HOSPITAL SYDNEY LIMITED
NG855 of 1998WILCOX, FINKELSTEIN and KATZ JJ
SYDNEY
14 APRIL 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG855 OF 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ABBOTT AUSTRALASIA PTY LIMITED
AppellantAND:
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
First RespondentALYSCHIA DIBBLE
Second RespondentLYDIA STEPHENSON, REPRESENTING THE INTEREST OF ALYSCHIA DIBBLE
Third RespondentST VINCENT’S HOSPITAL SYDNEY LIMITED
Fourth RespondentJUDGES:
WILCOX, FINKELSTEIN and KATZ JJ
DATE OF ORDER:
14 APRIL 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The orders made by Einfeld J on 31 July 1998 be varied by deleting orders 4 and 5.
2.Otherwise the appeal be dismissed.
3.The appellant, Abbott Australasia Pty Limited, pay to the third respondent, Lydia Stephenson, her costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG855 OF 1998
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
ABBOTT AUSTRALASIA PTY LIMITED
AppellantAND:
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
First RespondentALYSCHIA DIBBLE
Second RespondentLYDIA STEPHENSON, REPRESENTING THE INTEREST OF ALYSCHIA DIBBLE
Third RespondentST VINCENT’S HOSPITAL SYDNEY LIMITED
Fourth Respondent
JUDGES:
WILCOX, FINKELSTEIN and KATZ JJ
DATE:
14 APRIL 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT: Lamentably, this is the second occasion upon which a Full Court has been concerned with the complaint by the late Alyschia Dibble to the Human Rights & Equal Opportunity Commission (“HREOC”) of discriminatory conduct, contrary to the Sex Discrimination Act 1984, yet so far there has been no hearing on the merits of the complaint.
The earlier appeal
The complaint first came before the Full Court in May 1996, in Stephenson v Human Rights & Equal Opportunity Commission (1996) 68 FCR 290. That appeal involved the question whether a complaint under the Sex Discrimination Act abated on the death of the complainant. The question arose because the complaint had been made to HREOC by the late Ms Dibble a few months before she died in March 1995. Ms Dibble had appointed the then appellant, Lydia Stephenson, as executrix of her will. Although probate had not yet been granted, Ms Stephenson sought to continue to prosecute the complaint. However, in May 1995, the then President of HREOC, Sir Ronald Wilson, held the complaint did not survive Ms Dibble’s death. On application for review of that decision, the President’s view was upheld by Beazley J – see Stephenson v Human Rights & Equal Opportunity Commission (1995) 61 FCR 134 – but the Full Court held to the contrary. The Full Court set aside the order made by Beazley J and made a declaration that the complaint made to HREOC did not lapse by reason of Ms Dibble’s death. The Court assumed this declaration would suffice to cause the Commission to conduct an inquiry and commented that it could, if it thought proper, join Ms Stephenson as a party to the inquiry pursuant to s62 of the Act.
The hearing before Commissioner Evatt
Following the Full Court decision, HREOC fixed a date for hearing the complaint before an Inquiry Commissioner, the Hon Elizabeth Evatt AC. However, before the date of that hearing, a lawyer purporting to appear for the late Ms Dibble asked the Commissioner to join as a party to the inquiry Abbott Australasia Pty Ltd (“Abbott”), the present appellant. The Commissioner acceded to this application and ordered that Abbott “be joined as a party to the proceeding” under ss62 and 77 of the Act. Section 62 provides as follows:
“62.Where, before the holding of an inquiry, or at any stage during the holding of an inquiry, the Commission is of the opinion that a person ought to be joined as a party to the inquiry, it may, by notice in writing given to that person, join that person as a party to the inquiry.”
Section 77 empowers the Commission to give directions relating to the procedure to be followed at an inquiry.
The Commissioner conducted a directions hearing on 16 April 1997 at which there was discussion about parties. She adjourned the discussion until 23 April, on which day there was extensive argument on a number of topics. On 23 May 1997 the Commissioner announced her decision to join Ms Stephenson as a party under s62 of the Act. In explaining that decision, the Commissioner noted the Full Court observation about the possible joinder of Ms Stephenson and went on:
“It now appears that while Ms Stephenson is named in what appears to be a copy of the will of Ms Dibble, she has not taken out probate. The position is, however, that the complaint has not lapsed with the death of Ms Dibble, but continues. The Commission must hold an inquiry into the complaint of discrimination made by Ms Dibble. Section 50 and related sections of the Act appear to be based on the principle that the complainant of a complaint is the person or persons aggrieved by the act complained of one of those persons acting for the other person aggrieved or a trade union acting for those persons. In the present case there is no person other than Ms Dibble who could be considered as the complainant of this matter within the meaning of s.50(1).
In my opinion Ms Dibble remains the complainant of this complaint. No other person could be joined as a complainant in respect of her complaint. If other persons were aggrieved in respect of acts similar to those which were the subject of Ms Dibble’s complaint, those other persons could make complaints on their own behalf. All those complaints could possibly be joined with that of Ms Dibble for the purposes of the inquiry. There could be a representative or class action, but the members of the class would be limited to persons aggrieved. Ms Stephenson is not a person aggrieved.
Were Ms Stephenson the legally recognised personal representative of Ms Dibble, the inquiry could possibly continue without the need to give any further direction concerning parties. Ms Stephenson could continue to represent the interest of the deceased as she did in the Federal Court. It might have been convenient to do as the Federal Court suggested, namely to join Ms Stephenson as a party under s.62 not as a complainant, but as a party representing the interest of the complainant.
Can this be done even though Ms Stephenson has not established that she is the legal personal representative of the deceased. I think that it can by following the approach of the Federal Court and by determining what result best accords with the scope and purpose of the Act as disclosed by its provisions.
In deciding that a complaint survives the death of the complainant the Federal Court emphasised that the Act imposed an obligation to hold an inquiry with only one exception, namely where the complainant expresses the wish that it not continue. Proceeding with the inquiry into the alleged discrimination should as the Court underlined be seen as assisting in achieving the objectives of the legislation to advance the elimination of discrimination. The Court leaned against any interpretation of the Act which might unnecessarily frustrate the realisation of those objects.
In keeping with that approach the Commission should make such direction concerning the joinder of parties under s.62 as will facilitate the holding of the inquiry. This can be done by ensuring that the Commission has before it the parties most likely to assist it in reaching a determination concerning the alleged acts of discrimination. To achieve this end, provision must be made for the interest of the deceased complainant to be represented. Ms Stephenson is willing to represent that interest and she has some claim to do so as the person named in a will which is apparently the will of the deceased. No other person has claimed to represent that interest. It is not necessary in order to achieve the objects and purposes of the Act that the legal personal representative of Ms Dibble be a party though the absence of such a representative may present difficulties in regard to the claim for damages.
…
The Commission therefore joins Ms Stephenson as a party to the inquiry to represent the interest of the deceased complainant Ms Dibble.”
The Commissioner then turned to the future conduct of the inquiry and the relief that might be available. In order to follow her reasons on that point, it is necessary to know something about the circumstances of Ms Dibble’s complaint. The most convenient way to begin doing this is to set out the description given by Wilcox J in the earlier Full Court decision at 68 FCR 291:
“The appellant, Lydia Stephenson, is the executrix of the late Alyschia Dibble. Ms Dibble was born in June 1944. In 1990 she was diagnosed as HIV antibody positive. According to a complaint made by Ms Dibble to the Human Rights and Equal Opportunity Commission (the Commission), she experienced a considerable downturn in her condition during 1993 and the early months of 1994. She was referred to Professor David Cooper of St Vincent’s Hospital, Sydney. This hospital is conducted by St Vincent’s Hospital Limited (the hospital). the second respondent to this appeal. According to the complaint, Professor Cooper told Ms Dibble about a clinical trial being undertaken by the hospital on HIV positive patients. It involved the use of a drug called proteas inhibitios. Professor Cooper said that no other treatment was available to Ms Dibble and asked her to attend tests to determine whether she was eligible to participate in the trial. She did so and was approved for participation. However, shortly afterwards, in June 1994, Professor Cooper told her that she was ineligible for the trial. The reason he gave was that she was still menstruating and therefore there was a risk of pregnancy. According to the complaint, Ms Dibble responded by stating that there was no risk of pregnancy as she had not engaged in sexual activity with men for many years. Additionally, she offered to undergo a tubal ligation. However, the hospital remained adamant and Ms Dibble was excluded from the trial.”
The complaint lodged by Ms Dibble named only one respondent, St Vincent’s Hospital Limited. The hospital responded to the complaint by claiming that Professor Cooper had been forced to rule Ms Dibble ineligible for the trial because of the attitude taken by the pharmaceutical company under whose auspices the trial was being undertaken. This company is, apparently, Abbott. During the short period that remained before her death, Ms Dibble took no action to add Abbott as an additional respondent. However, as indicated, at an early stage of her association with the complaint, Commissioner Evatt joined Abbott as a “party to the proceeding”.
Apparently there had been debate on 23 April 1997 as to whether the Commission had power to make a declaration of unlawful conduct in relation to any person other than Ms Dibble. Counsel for the hospital, Ms Chris Ronalds, submitted the Commissioner did not. The Commissioner set out the response of counsel for Ms Stephenson, Ms Sylvia Winters:
“Ms Winters has submitted that there is nothing in s.81(1)(b)(i) to limit the complainant’s powers to a declaration specific to the exclusion of Ms Dibble from the study, that the declaratory power under paragraph (1) is expressed generally and that it should not be read down. … if other women had been excluded from the trial on the same basis as Ms Dibble and her exclusion was found to be unlawful then their exclusion would also be unlawful. The Commission would not in that case, be precluded by anything in the Act from making the declaration sought.”
Excluding that portion of it that relates to representative complaints, s81 of the Sex Discrimination Act provides:
“81.(1) After holding an inquiry, the Commission may:
(a)dismiss the complaint the subject of the inquiry; or
(b)find the complaint substantiated and make a determination, which may include any one or more of the following:
(i)a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;
(ii)a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;
(iii)a declaration that the respondent should employ or re-employ the complainant;
(iv)a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;
(v)a declaration that the respondent should promote the complainant;
(vi)a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;
(vii)a declaration that it would be inappropriate for any further action to be taken in the matter.
(2)A determination of the Commission under subsection (1) is not binding or conclusive between any of the parties to the determination.
(3)The Commission may, in the making of a determination under subsection (1), state any findings of fact upon which the determination is based.
(4)The damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.”
The Commissioner noted a submission in reply from Ms Ronalds that the Act, especially ss50(1), 52, 52A and 52B, “make it clear that the inquiry and the determination arise out of the complaint and cannot go outside its terms”; also “a finding of unlawful discrimination under section 22 must relate to conduct in respect of the aggrieved person”. The Commissioner made this ruling:
“The conduct which the Act renders unlawful is basically conduct which discriminates against ‘another person’ in the manner defined by the Act: see for example s.22(1). Section 50 provides that a person aggrieved by an act alleged to be unlawful may lodge a complaint with the Commission. A person aggrieved can lodge a complaint on behalf of other persons aggrieved by the same act. The Act also makes provision for class or representative actions ss.50(1)(c) 69, 82. These provisions make it possible for the Commission to look at the effect of conduct, such as that complained of here on a wider group of persons aggrieved. But it appears to me that the Commission is authorised to declare past conduct unlawful only in so far as that conduct has affected a person aggrieved or persons aggrieved who made or are covered by the complaint.
In the present case, if discrimination were established the Commission could make a declaration that St Vincent’s and/or Abbott had engaged in conduct in relation to the deceased complaint [sic: complainant], Ms Dibble which was unlawful conduct within the meaning of the Act. The Commission could not in these proceedings, make a declaration concerning the lawfulness of conduct in relation to persons who were neither complainants in the proceedings nor persons on whose behalf a complaint had been made whether as individuals or members of a class.
It would therefore intend to approach the first declaration sought as if ‘Ms Dibble were substituted for ‘women of child-bearing age’.”
There was also an issue about the availability of a declaration concerning future conduct. The Commissioner said this:
“Ms Ronald submits that as the study from which Ms Dibble was excluded has been completed the Commission has no power to make any declaration in relation to the study, as a matter of practicality. She also argues that the Commission could not, in the context of these proceedings make a declaration concerning the future conduct by the Hospital and/or Abbott of any other studies but is limited to declaring that the unlawful conduct in relation to the complainant should not be continued.
Ms Winters submits that there is nothing in the Act to support the contention that declarations made under s.81(1)(b)(i) cannot be made in general terms. She submits that anti-discrimination legislation is remedial in nature and is to be interpreted liberally, so as to give the most complete remedy permissible. Where there is ambiguity the construction favourable to the beneficiary of the legislation should be preferred. Ms Ronalds submits, however, that no one other than a party can seek the enforcement of a determination (s.83A(1)).
Most of the sub-paragraphs of s.81(1)(b) are expressly directed to the making of declarations which bear upon the personal position of the complainant. Sub-para (i) is more general in its terms. It is for the reasons outlined above, primarily directed to a declaration that unlawful conduct has occurred in relation to the complainant. By making provision for a declaration that the respondent should not repeat or continue such unlawful conduct, the legislature may perhaps be taken to mean that only conduct in relation to the complainant is covered.
However, there is a possible ambiguity here since the conduct found to be unlawful in relation to a complainant may itself affect directly other persons in the same position as the complainant. In that case it may be appropriate to consider making a declaration concerning future conduct which is not expressly limited to conduct in relation to the complainant. On the other hand if a person aggrieved wanted to seek a declaration which had this wider affect it would be possible to make use of a representative or class action. That has not been done in the present case.
The question is largely academic here since the studies from which Ms Dibble was excluded has been completed and there is no possibility of any future conduct in relation to that study concerning her or any other person who may have been excluded from that study in the past. It is the conduct of that study and the way in which each of the respondents exercised responsibility for the inclusion or exclusion of Ms Dibble from that study, which is the focus of the inquiry. Other studies past and future are relevant only to the extent that they may throw light on the complaint of Ms Dibble. The declaration could not be extended to those other studies.
It appears to the Commission that there is little if any scope in this case for any declaration concerning future conduct.”
Finally, the Commissioner noted arguments relating to the availability of damages. However, she made no ruling on that matter, simply saying she would deal with the question of damages in the course of the inquiry.
The application for review
On 19 June 1997 Abbott filed an Application in this Court seeking review of some of the Commissioner’s rulings. It named HREOC as first respondent, Ms Dibble (although, of course, deceased) as second respondent, Ms Stephenson as third respondent and the hospital as fourth respondent. The Application was subsequently amended to claim the following relief:
“1.an order setting aside the decision of Commissioner Evatt to join Ms Stephenson as a party to an inquiry into a complaint by the late Ms Dibble pursuant to the SD Act.
2.an order setting aside the decision of Commissioner Evatt to join the applicant as a party to an inquiry into a complaint by the late Ms Dibble pursuant to the SD Act.
3.an order declaring that Ms Stephenson has no entitlement to represent the interests of the estate of the late Ms Dibble in any inquiry by HREOC into a complaint made by Ms Dibble in any inquiry by HREOC into a complaint by Ms Dibble without a grant of probate of a will of the late Ms Dibble.
4.a declaration that Commissioner Evatt lacked jurisdiction to join the applicant as a party to the inquiry into the second respondent’s complaint.
5.a declaration that Commissioner Evatt lacked jurisdiction to join the third respondent as a party to the inquiry into the second respondent’s complaint.
6.an order pursuant to Section 39B Judiciary Act 1903 restraining any commissioner of HREOC from making any determination with regard to the applicant in the inquiry into the second respondent’s complaint.
7.an order directing Ms Stephenson to refrain from seeking any determination by HREOC in respect of the applicant regarding any complaint made by the late Ms Dibble pursuant to section 50 SD Act.”
On 22 August 1997 Ms Stephenson filed a Cross-Application for judicial review of the Commissioner’s decision:
“(a) to join her as a party and not as a complainant;
(b)to limit the declaratory relief to unlawful conduct towards the late Ms Dibble and not to include other persons who may have been refused participation in the drug trial for similar reasons applied to Ms Dibble.”
The matter came before Einfeld J. There were some difficulties about the time at which applications had been made, but his Honour extended time. In reasons published on 31 July 1998, he dealt with all the issues raised by the parties. After recounting the history of the matter, he set out s22(1) of the Act which defines the relevant unlawfulness:
“22(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status or pregnancy:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.”
Einfeld J also noted the relevant description of discrimination, in s5(1) of the Act:
“5.(1)For the purposes of this Act, a person (in this subsection referred to as the ‘discriminator’) discriminates against another person (in this subsection referred to as the ‘aggrieved person’) on the ground of the sex of the aggrieved person if, by reason of:
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.”
After a survey of other relevant statutory provisions and an account of the submissions put to him, Einfeld J concluded that Commissioner Evatt was correct to join Abbott as a party. He said:
“… She clearly formed the opinion that Abbott’s position as in substance the alleged discriminator under section 22(1), made it a desirable even necessary respondent. It does not seem to me that the Act requires an application to join a party at all, or that an application can only be made by an aggrieved person or by someone with standing based on a legal interest. All it demands is an opinion of the Commission that the party should be joined.”
Dealing with the question whether Ms Stephenson should be regarded as the “complainant”, as distinct from a “party”, Einfeld J said:
“In my opinion, a complaint inquired into by the Commission must have a complainant. Otherwise there will be no one to pursue it and it will have to be dismissed: BMI Ltd v Federated Clerks’ Union of Australia [1983] 76 FLR 141 at 154-5: Corporate Affairs Commission v Transphase Pty Ltd [1988] 15 NSWLR 596 at 605: Daemar v Industrial Commission of NSW [1990] 22 NSWLR 178 at 187: Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448.
With respect Commissioner Evatt was not correct to hold that the deceased was and remains the only complainant. I can see nothing in the statutory scheme or in the Full Court’s judgment to suggest that a deceased complainant can be a party to an inquiry.”
Einfeld J, who was a member of the previous Full Court, said he did not believe “that only an executor granted probate was in the Full Court’s mind when it held that the complaint survived Ms Dibble’s death”. He cited authority for the proposition that, until probate is granted, an executor of an estate cannot sue for debts owed to the estate or for damages, but said that “pursuing a complaint of unlawful sex discrimination which survives the death of the complainant” is not covered by the principles found in those cases. After referring to the objects of the Act stated in s3, his Honour said:
“The primary purpose of the Act is therefore the elimination of discrimination on the grounds of sex. Although there are private consequences from inquiries into discrimination complaints, the essential objects are public and societal. The Act is not merely vindicatory and compensatory. It is intended to be an agency for educative and attitudinal change. As Sir Ronald Wilson said in his decision in this case:
‘Given the objectives of the SDA, a hearing into a complaint like the present could still serve a useful public purpose in advancing those objectives notwithstanding that there could be no personal benefit to the claimant.’”
Einfeld J noted the term “complainant” is not defined in the Act. But he said the context and content of the Act suggested two meanings:
“(a) the person(s) aggrieved or a trade union under section 50(1), the Sex Discrimination Commissioner or the Minister under section 51(d), and the Minister under section 58 – of which only aggrieved persons or the members of a class of aggrieved persons can be direct beneficiaries of relief under section 81(1).
(b)the party who prosecutes the complaint and bears the onus of establishing an unlawful act, who need not be the initial prosecutor if the Commission has joined someone else as complainant.”
His Honour then said:
“In my opinion any person who can legitimately pursue the complaint is empowered to seek a mandate to continue it. This person may be anyone who can prove a sufficient connection with the deceased including the executor named in the deceased’s will.”
In relation to relief, Einfeld J said:
“In my view the only relief that Ms Stephenson can obtain is a declaration that Abbott and St Vincent’s discriminated against Ms Dibble on the ground of sex by excluding her from the drug test on the ground that she still possessed child-bearing potential. No wide declarations are appropriate and damages cannot be awarded: Ainsworth v Criminal Justice Commission [1992] 175 CLR 564 at 582. See also s84D.”
Section 84D relevantly provides:
“84D(1)If a determination to which this Division applies that is made under section 81 includes a declaration that the respondent should pay damages to the complainant, the complainant is entitled to be paid the amount specified in the declaration.
(2)…
(3)…”
Einfeld J made the following orders:
“1.The time in which an application can be made for review of the first respondent’s decision to join the applicant as a party to the complaint is extended to 19 June 1997.
2.The applications for review of the decision of the first respondent to join:
(a)the applicant as a party to the complaint; and
(b)the third respondent as a party to the complaint
are dismissed.
3.The time in which a cross-application can be made for review of the first respondent’s decision to join the third respondent as a party but not as the complainant and to limit the declaratory relief available on the determination of the complaint is extended to 22 August 1997.
4.The cross-application by the third respondent for review of the decision of the first respondent to join the third respondent as a party and not as the complainant is allowed.
5.It be declared that the deceased second respondent is no longer the complainant and that the third respondent be joined to the inquiry of the first respondent as the complainant.
6.The cross-application by the third respondent for review of the first respondent’s decision to limit the declaratory relief available on the determination of the complaint is dismissed.”
The appeal
On 21 April 1998 Abbott filed a Notice of Appeal in which, in effect, it challenged Einfeld J’s orders 2 and 5. There was no Cross-appeal or Notice of Contention. It follows three issues fall to be determined by us:
(a)whether his Honour erred in upholding the order of the Commissioner that Abbott be joined as a party to the inquiry pursuant to s62 of the Sex Discrimination Act ;
(b)whether his Honour erred in upholding the order of the Commissioner that Ms Stephenson be joined as a party to the inquiry pursuant to s62 of the Act; and
(c)whether his Honour erred in ruling that Ms Stephenson should be regarded as the “complainant” for the purposes of the inquiry.
We will deal separately with the positions of Abbott and Ms Stephenson.
The joinder of Abbott
Counsel for Abbott, Mr Paul Menzies QC and Ms Janet Oakley, put a number of submissions in relation to the joinder of their client. Their most fundamental submission is that, as the only inquiry HREOC can conduct is one into the complaint against the hospital, the Commission had no jurisdiction to join Abbott as a party. Secondly, they complain that Einfeld J erred in referring to Abbott as “a desirable even necessary respondent” when it had merely been joined as a party. They say this error led his Honour into the further error of envisaging the possibility of Ms Stephenson obtaining a declaration against Abbott, a remedy only available against a respondent. Counsel also submit Einfeld J inadequately considered their criticisms of the way in which Commissioner Evatt handled the matter of joinder.
There appear to be two strands to counsel’s first submission; one, it is not competent for the Commission to join as a party a person against whom no complaint is made; two, no person had standing to seek the joinder of Abbott.
It seems to us both propositions are incorrect. The criterion for joinder of a party under s62 is merely that “the Commission is of the opinion that a person ought to be joined as a party to the inquiry”. An Inquiry Commissioner might form that opinion for any one of a number of reasons. In the present case, the Commissioner was faced with a situation where the person charged with discriminatory conduct, the hospital, responded to the complaint by blaming Abbott for its conduct. In determining what orders, or even what comments, ought to be made in respect of the complaint, it was obviously necessary for the Commissioner to consider that response. If she were to do so, fairness required her to give Abbott an opportunity to put its side of the matter and to challenge any adverse evidence that might be offered. How better to do this than to make Abbott a party, with rights to cross-examine witnesses, call evidence and put submissions? It will be for Abbott to decide to what extent it wishes to exercise those rights. It seems to us it was open to the Commissioner to form the opinion that Abbott ought to be joined as a party to the inquiry; once that opinion was formed, it was within her power to make a joinder order.
We agree with counsel that it would not have been open to the Commissioner to make Abbott a respondent to the complaint. The term “respondent” is defined in s4 of the Act, in relation to a complaint, as “the person who is, or each of the persons who are, alleged to have done the act to which the complaint relates”. That must mean alleged in the complaint to have done the act. The complaint in the present case was made on behalf of Ms Dibble by a solicitor associated with the Inner City Legal Centre, Ms Julia Cabassi. The complaint contains no reference to Abbott. It deals only with the conduct of Professor Cooper, on behalf of St Vincent’s Hospital. That HREOC understood the complaint to be made only against the hospital is evident from a letter of acknowledgment from HREOC to Ms Cabassi of 9 December referring to “the complaint by Ms Alys Dibble against St Vincent’s Hospital”. Ms Cabassi did not challenge that understanding. No doubt it is open to HREOC, or an Inquiry Commissioner, to permit the amendment of a complaint, in such a manner as to make allegations against one or more additional persons. If that is done, each of those persons will become a respondent. If the amendment withdraws allegations against an existing respondent, that person will cease to have that status. But a complaint may only be amended by the complainant or a person authorised to represent the complainant. Whether the Commission has power to amend a complaint on the application of a person to whom probate or letters of administration has been granted is a question not argued before us and upon which we express no view. The question may turn on the succession law of the relevant State or Territory, in the present case presumably New South Wales.
Until there is an amendment, the identity of the respondent remains fixed by the terms of the original complaint. In the present case, there has been no amendment. Consequently, we agree it was erroneous of Einfeld J to refer to Abbott as a “respondent”. This seems to have been a slip. His Honour had previously recorded the fact that Commissioner Evatt had ordered that Abbott “be joined as a party to the proceeding”. This was the true position. Nothing turns on Einfeld J’s slip; the position was as ordered by Commissioner Evatt. Einfeld J made no contrary order.
Einfeld J dealt with the manner of joinder in this way:
“The hearing at which the joinder was ordered was quite unsatisfactory, perhaps because it was held on the telephone. But the Commission’s procedures are intended to be informal and quick and there were ample opportunities both during and after the 13 March 1997 hearing for Abbott to seek reconsideration of its joinder had it sought to do so. Nevertheless, the confusion of that hearing justified the delay in seeking review of the decision to join. I therefore extend the time for filing the application to review the decision of 13 March 1997 to join Abbott as a party/respondent but dismiss the application for review.”
We agree with this approach. No injustice has been done to Abbott. Einfeld J was correct to dismiss Abbott’s application for review of the Commissioner’s order making it a party to the complaint.
Ms Stephenson’s position
There are two aspects of the debate concerning Ms Stephenson: whether she should have been joined at all; and, if so, whether she should be treated as the complainant.
Abbott’s argument in respect of the first matter depends upon the circumstance that Ms Stephenson has not yet taken out probate of Ms Dibble’s will. Counsel say neither Ms Stephenson nor anyone on her behalf “provided any evidence as to her entitlement to represent the interests of the estate of the second respondent” and complain that the Commissioner did not require evidence of such entitlement. They challenge Einfeld J’s rejection of the application of legal authorities holding a named executor cannot sue for debts or damages due to an estate until probate has been granted.
Abbott’s argument was put to both Commissioner Evatt and Einfeld J. However, it is misconceived. It imports into s62 something not contained in the section itself. As we have previously pointed out, the only precondition to a joinder order under s62 is that the Commission has formed the opinion “that a person ought to be joined as a party”.
In the present case, the Commissioner was faced with the situation that the complainant was dead, yet the complaint survived and necessitated investigation. It would obviously assist the Commissioner to ascertain and evaluate the facts if both sides of the issue were actively represented. A person named by the deceased complainant as the executrix of her will, and who might therefore reasonably be presumed to have enjoyed her confidence, was willing to participate in the inquiry for the purpose of supporting the complaint. There was no other candidate for that role. In the absence of some special problem about that person’s participation in the inquiry, it would have been almost irrational to refuse the application for joinder. It was certainly open to Commissioner Evatt to conclude it would be appropriate to join Ms Stephenson as a party “to represent the interest of the deceased complainant Ms Dibble”. We see no legal error in her order. Ms Stephenson was joined as a party because of her apparent capacity and willingness to assist the inquiry. One of the factors relevant to her appropriateness was the fact that she had enjoyed Ms Dibble’s confidence; that was not affected by the lack of probate. Except perhaps in relation to her ability to seek an order for payment of damages, the lack of a grant of probate was irrelevant.
Commissioner Evatt was aware of, but deferred, the possible problem about a damages order. Einfeld J thought the High Court’s decision in Ainsworth and/or s84D of the Act precluded an award of damages. We have difficulty with reliance on those materials. However, as his Honour made no order about the matter, his view is not binding on the Commission or an issue before us. If it should happen that Ms Stephenson decides to seek from the Commissioner an order for damages, she will need to persuade the Commissioner that she is entitled to that relief; no doubt that will require her to grapple with the line of authority that insists an executor or executrix must have obtained probate before making a damages claim on behalf of an estate.
The second matter relating to Ms Stephenson is whether it was correct for Einfeld J to declare that Ms Dibble “is no longer the complainant” and that Ms Stephenson “be joined to the inquiry … as the complainant”. Counsel for Abbott make a number of procedural criticisms about Einfeld J’s handling of this matter, but we do not find it necessary to go into those criticisms. We respectfully think it was erroneous to treat Ms Stephenson as a substitute complainant.
The Act does not define the word “complainant” but it provides in Part III for inquiries and civil proceedings. Leaving aside the situation where action is initiated by the Sex Discrimination Commissioner or the Minister, an inquiry must have its genesis in a “complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II” of the Act. The complaint must be lodged by a person or persons aggrieved by the act, a person or persons included in an aggrieved class of persons or a trade union whose membership contains an aggrieved person or persons (s50). If the Sex Discrimination Commissioner or the Minister initiates a matter, the Sex Discrimination Commissioner is to be treated as the complainant (s51). Subsequent sections deal with the procedure to be observed at inquiries conducted by the Sex Discrimination Commissioner (see Division 2 of Part III) and HREOC itself (see Division 3). Provision is made for HREOC’s powers to be exercised by an Inquiry Commissioner and we understand this to be the role undertaken by Commissioner Evatt.
Both Division 2 and Division 3 make frequent reference to “the complainant”, as a participant in any inquiry to which either relates. It seems to us clear that this is a reference to the person who initiated the process by lodging a complaint under s50. The point is graphically made by s64 which provides:
“64.The parties to an inquiry shall be the complainant, the respondent, any person joined by the Commission as a party to the inquiry and any person to whom the Commission grants leave to appear as a party to the inquiry.”
It will be noted “the complainant” (and “the respondent”) are distinguished from “any person joined by the Commission as a party”. As we see the situation, the “complainant” is the person or persons who lodged the original complaint and the “respondent” is the person who is alleged to have done the act to which the complaint relates. The identity of these people is established by the complaint itself.
A complaint may be amended by the original complainant or complainants or a duly authorised person. If that is done, one or more additional complainants may be added or one or more existing complainants deleted. Until that happens, the identity of the complainant or complainants is fixed by the terms of the original complaint. In the present case, the complainant is dead. That imposes some practical difficulties but does not mean the complaint has to be dismissed. Respectfully, we think the cases mentioned by Einfeld J in the passage quoted in para 16 above are distinguishable. They were decisions relating to the availability of declaratory relief in judicial proceedings where there was no longer a true issue and proper contradictor. Commissioner Evatt was concerned with an administrative proceeding whose objects, as Einfeld J pointed out, are essentially “public and societal”.
As Wilcox J pointed out in the previous Full Court decision at 299, the practical difficulties stemming from the absence of a complainant, are not insuperable. Commissioner Evatt endeavoured to ameliorate them by joining Ms Stephenson as a party; it was not competent for her to appoint Ms Stephenson as complainant. We respectfully think Einfeld J erred in making order 4 and 5.
Orders
The only error in the orders made by Einfeld J was the insertion of orders 4 and 5. We propose to vary his Honour’s orders to the extent of deleting these orders.
Einfeld J made no order in respect of costs. Neither HREOC nor Ms Stephenson sought costs of the hearing before him. The hospital sought that Abbott pay its costs, but his Honour did not consider that to be appropriate. We see no basis for interfering with his Honour’s view about that matter.
Neither HREOC nor the estate of Ms Dibble took any active role in the appeal. There should be no costs order affecting either of those respondents. Although counsel for St Vincent’s Hospital appeared and put short submissions, the hospital’s interests were not affected by the issues under debate. It is not appropriate to make any order for or against that respondent.
A more significant question arises in relation to Ms Stephenson. At the hearing before us, Ms Winters did not press Einfeld J’s view that Ms Stephenson should have the status of complainant; she was content that her client have the status determined by Commissioner Evatt. On the other hand, the notion that Ms Stephenson should be recognised as complainant originated in the written submissions supplied to Einfeld J on her behalf.
The more important point is that Ms Winters came to court mainly to resist the argument, urged by counsel for Abbott, that Commissioner Evatt erred in joining her client as a party under s62 and, to a lesser extent, their argument that Abbott ought not to have been joined. She was successful in relation to both those matters. As little time was expended on the question whether Einfeld J was correct in declaring Ms Stephenson to be joined as complainant, we think Abbott should pay Ms Stephenson’s costs of the appeal.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, Finkelstein and Katz. Associate:
Dated: 14 April 1999
Counsel for the Appellant: P Menzies QC and J Oakley Solicitor for the Appellant: Minter Ellison Counsel for 3rd Respondent: S Winter Solicitor for 3rd Respondent: Inner City Legal Centre Counsel for 4th Respondent: C Ronalds Solicitor for 4th Respondent: Lynn Boyd Date of Hearing: 25 February 1999
1
2
1