Absolon v NSW TAFE

[1999] NSWCA 311

CITATION:	Absolon v NSW TAFE [1999] NSWCA 311
FILE NUMBER(S):	CA 40367/97
HEARING DATE(S):	01/10/98
JUDGMENT DATE:	30 August 1999
PARTIES :	Elizabeth Jadwiga Absolon v NSW Technical and Further Education Commission & Anor
JUDGMENT OF:	Powell JA at 1; Fitzgerald JA at 88; Sheppard AJA at 151

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	30003/97
LOWER COURT JUDICIAL OFFICER:	Simpson J

COUNSEL:	B R Rayment QC/ J B Bishop/P M Lane (Appellant) A R Moses (Respondent)
SOLICITORS:	W J Whitting (Appellant) I V Knight Crown Solicitor (Respondent)
CATCHWORDS:	Adequacy of reasons; Equal Opportunity Tribunal; discrimination on grounds of sex; discrimination on grounds of previous complaint; victimisation; specialist body; exercise of jurisdiction; whether error of law; no defect manifest on record; adequacy of reasons; whether failure to take material considerations into account.
DECISION:	Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40367/97
EOT 23/91

POWELL JA
FITZGERALD JA
SHEPPARD AJA

Monday, 30 August 1999

Elizabeth Jadwiga ABSOLON v NEW SOUTH WALES TECHNICAL & FURTHER EDUCATION COMMISSION & ANOR

JUDGMENT

1   POWELL JA: I have read, in draft, the Judgment which has been prepared by Fitzgerald JA. I regret, however, that I cannot share his Honour’s conclusions that the Equal Opportunity Tribunal (“the Tribunal”) erred in law when dealing with complaints 11, 19 and 21. 2   Although, in his Judgment, Fitzgerald JA has provided some of the background which led to this appeal, it is necessary, if I am to explain the reasons which have led me to differ from his Honour, that I provide a more extended record of the background facts. 3   The Appellant, who, at the time of lodging her complaint with the President of the Anti-Discrimination Board (“the Board”) in September 1989, appears to have been about 43 years of age, commenced employment with the Department of Technical Education, as it was then known, as a teacher in shorthand and typewriting at the beginning of 1967. Thereafter, the Appellant progressed through various positions with the Department and, later, with the Respondent which came to replace it, until January 1980 when she was appointed Principal Grade III at Campbelltown TAFE College, a position which she held until April 1986. Among the positions which the Appellant held during that period was that of Principal Grade IV at Mudgee Technical College, a position which she held for about 12 months. It was while she was at Mudgee that the Appellant met Mr. Michael Ryan, another employee of the Respondent who, at the time of the Appellant’s lodging her complaint to the President of the Board, was employed by the Respondent as Administrative Officer (Colleges and Schools). Mr. Ryan’s place in this history can be seen from the terms of Complaints 1-5 with which the Tribunal was concerned to deal - the 21 complaints with which the Tribunal was ultimately concerned to deal are set out in the Schedule to this Judgment. 4   In January 1986 the position of Principal of the Campbelltown College of TAFE was upgraded to Grade II level, it following that, if she were to retain her position as Principal, the Appellant needed to be placed high enough on the Eligibility List for Grade II Principals to be given promotion. 5   The Selection Panel for the Grade II Eligibility List, of which panel Mr. Ryan was a member, conducted interviews in February 1986. Although placed on that Eligibility List - a fact of which the Appellant was informed by letter written by Mr. R.J. Puffett the then Director (Staff) on 24 March 1986 - the Appellant was not placed high enough to be given promotion. Meantime, on 7 March 1986, the Appellant had complained to Mr. Puffett of the attitude of Mr. Ryan and one other member of the Selection Panel during the course of her interview. This incident forms the basis of Complaint No. 1 with which the Tribunal was concerned to deal. 6   In April 1986 the Appellant was transferred to the Strathfield College of TAFE as Principal. 7   It would seem that, meantime, a number of those who had been placed on the Eligibility List ahead of the Appellant - included in which number was a Mr. Kretchmer - had been promoted to Principal Grade II positions. The Appellant thereupon appealed to the Government and Related Employees Appeal Tribunal (“GREAT”) in respect of those promotions, the appeal - and, as it would seem, appeals which had been lodged by others - being heard by GREAT in September 1986. The Appellant’s appeal appears to have been dismissed. 8   In 1987 the Appellant applied for two promotional positions, one being for Grade I Principal positions, the other being for Principal Grade II at Shellharbour. The Appellant was not placed on the Eligibility List for the Grade I positions and in company with a number of others - including Mr. Kretchmer - appealed to GREAT against the appointment of a Ms. Schofield. Those appeals were all dealt with in March 1988, all appeals being dismissed. Meantime, the position at Shellharbour College of TAFE had been filled although the Appellant and two others were placed on an Eligibility List which remained current until July 1988. 9   It would appear that, in December 1987, the Appellant fell ill with pneumonia and was absent on sick leave for the better part of 3 months, during the early part at least of which there was no one acting in the role of Principal. As from early 1988, the problem caused by the Appellant’s absence was compounded by the fact that the then existing Registrar was promoted and left, that Registrar being replaced by an Acting Registrar who was inexperienced - a more experienced officer to act as Registrar was not appointed until mid-May 1988 and the substantive position of Registrar was not filled until November 1988 when Mr. C.A. Gleeson was appointed to the position which was then graded Grade 2/3 - that grading, so the Appellant was later to point out, was quite inadequate for the task required to be fulfilled by the Registrar at Strathfield College of TAFE. In the result, so the Appellant was later to write (Exhibit A p.191) “The College … operated for almost 12 months without substantive officers in key management and administrative positions. When the Registrar’s position was ultimately filled, the successful officer, although possessing the ‘essential’ qualifications set by HO, unfortunately turned out to have no previous experience in most of the managerial skills required for this position.” 10   In March 1988, a few days after the Appellant’s appeal to GREAT in respect of the appointment of Ms. Schofield was dealt with, the Appellant, who had applied for a Grade II Principal’s position, was interviewed by a selection panel which included among its members a Ms. Brell and a Mr. B. O’Reilly. The Appellant did not obtain a Grade II position nor was she placed on the Grade II Eligibility List. Although it is not entirely clear that this was so, it would seem that the Appellant once more lodged appeals against the promotion of those who had been appointed to the vacancies, those appeals being heard by GREAT in about October 1988 and being dismissed. This matter was the subject of Complaint No. 2. 11   In the course of its Judgment the Tribunal recorded that:

“Assistance had been provided for the (Appellant). On 5 August 1988 she had sought assistance for Strathfield from Mr. Bob Puffett who sent his administrative assistant Ms. Crawford to the College on 8 August 1988. Mr. Puffett regarded this as an unusual request and he was unaware of any other principal seeking such assistance.
Ms. Crawford remained at the College until 23 September 1988. While she was there she performed a number of duties which the Tribunal saw as designed to assist the (Appellant). Mr. Puffett had Ms. Crawford’s reports concerning the state of Strathfield College, which the Tribunal has accepted on the basis, not of their accuracy, but on the basis of how the reports would have affected Mr. Puffett’s view of the state of Strathfield College when the decision was made to have a Management Support Team appointed.”

12   On 19 November 1988, the Appellant forwarded to Dr. A. Patterson, the then Director-General of the Department, a strongly worded complaint as to what she alleged was the biased treatment which she had received at the hands of Ms. Brell and Mr. O’Reilly and demanding that they be removed from any future selection committees within TAFE. That letter was followed by a letter of 4 December 1988 to Mr. White the then Deputy Director-General, an interview by Mr. White in mid-December 1988, a further letter to Mr. White of 7 February 1989, and letters to Mr. Michael Brinsden, the then newly appointed Director-General, on 7 and 21 February 1989. In her letter to Mr. White of 7 February 1989, the Appellant concluded:

“As I am aware that Hornsby College (Gr II) is currently available I request appointment to Hornsby as rectification of the obvious injustice caused by not placing me on an eligibility list when I was clearly qualified and eligible for such placement.”

13   When Mr. Gleeson took up his position as Registrar in the latter part of November 1988, he was faced with a significant back log of work which needed to be dealt with. As well, so it would seem, a significant part of the office staff was inexperienced and needed to be trained. Because of these facts and, as well, because of his own comparative inexperience and the further fact that the position of Registrar at the College required someone of greater seniority than that possessed by Mr. Gleeson, he found it very difficult to cope with the demands made upon him. 14   It is quite clear that by April 1989 Mr. Gleeson was under very considerable strain. On 20 April 1989, when providing an assessment of the “administration status” of the College to the Appellant, Mr. Gleeson recommended (inter alia):

“That additional overtime be sought from head office and obtain the services of experience (sic) staff from nearby colleges to help bring all areas up to a workable standard.
Also, in the long term by having experienced staff from other colleges would assist in the training and development of our own staff.”

15   Either later in April or in early May 1989, Mr. Gleeson attended on the Personnel Manager of the Department concerning the possibility of a transfer from Strathfield to another college. At the time, he took with him a doctor’s certificate which recorded that he was suffering “from an acute anxiety state due to the stress of his present occupation” and recommending that “In the best interests of his health he should be transferred to a position that is less stressful.”. 16   In a Memorandum which she forwarded to Mr. Ryan on 10 May 1989, the Personnel Manager wrote (inter alia):

“Although with the assistance of a Relief Clerk the backlog of work is up to date, Mr. Gleeson is feeling insecure and lacks confidence in his role as Registrar. Although he has indicated he has worked hard and has put in much of his own time and is willing to do so in the future he is concerned that the overall lack of procedures in place in the office and difficulties that these are causing in the efficient functioning of the college (sic). His report, attached, highlights many of these problems. Although the Principal has requested an upgrading of the Registrar’s position to Clerk 5/6 (see attached) this will not assist the college in the short term in dealing with the problems at hand.
REQUEST FOR TRANSFER
Mr. Gleeson has requested a transfer as he is extremely stressed and worries at night about the situation, feeling that it is and will reflect badly on him.
I advised him that, as he does not meet the two year requirement for consideration of transfer, his application will not be approved at this stage. He felt that working with an experienced Senior Registrar as an Assistant Registrar, or working at a college with procedures would not be a problem.
CONCLUSION
After much discussion I believe that one of the main problems for Mr. Gleeson is lack of sufficient training and support for his role as Registrar. Although gradings for Registrars are based on staff numbers, the duties are extremely varied and demanding, placing a large amount of responsibility on the officer. Mr. Gleeson has no mentor in his new role of a College manager and feels inadequate in dealing with many problems, due to his inexperience as a manager. When I suggested that his transfer would not be approved but I would recommend that a senior experienced Registrar work at the College with him for a month as part of new College manager’s training to assist him in developing procedures he seemed relieved and quite willing to remain at the college.
Action must be taken to assist the College. If Mr. Gleeson leaves, then the situation will still remain for any new Registrar appointed to the position.
RECOMMENDATION
(i) For a minimum period of one month that a senior member of the Colleges and Schools administration or Senior Registrar be placed at Strathfield to assist Mr. Gleeson in developing and implementing administrative procedures;
(ii) This officer would also be required to act as a mentor and assist Mr. Gleeson in defining the role of the Registrar and Principal in relation to college administrative matters, to ensure a harmonious working relationship;
(iii) A report at the end of this period be submitted to the Administrative Officer (Colleges and School) to advise on the situation with recommendations of any further action needed.”

17   The Appellant’s request for “an upgrading of the Registrar’s position to clerk 5/6” to which the Personnel Manager referred in her memorandum was contained in a letter dated 1 May 1989 from the Appellant to Mr. Puffett, which letter, after referring to the problems which had been caused by inexperienced officers acting in various positions in the College during 1988 continued:

“The consequences of that inexperienced officer acting as Registrar for that extended period of time are still being felt by the College now. The new Registrar - appointed finally in November, was landed with the unenvious task of supervising the new Enrolment Procedures and the associated Administrative Charge. This has caused havoc with the normal, routine workload of the College office, let alone allowed the Registrar time (sic) to concentrate on correcting the problems caused in 1988 by HO not filling the Registrar position for some ten months following the original vacancy.
I have observed Mr. Gleeson attempting to ‘manage’ a College office under these extraordinary circumstances since November 1988. He is coping - with difficulty. He is almost - in my opinion - on the verge of a breakdown through no fault of his own. The position is that a clerk Gr 2/3 with a salary level of approx $22,000.00. The responsibilities at this college are much greater than any other Gr. III Metropolitan College - our enrolments are higher that (sic) any other Gr. III College, our profile is mainly Trades Based, our Budgetary Allocation is the highest in the Gr. III Colleges (except for Wyong which has a Gr. 4/5 Clerk in the same position), our enrolments are Gr. II college level, our General Division Staff Establishment is higher than any other Gr. III College. The experience of a Gr. 2/3 officer and the salary level are not commensurate with the duties of the position. I am formally requesting your assistance in obtaining an upgrading of the position to that of at least clerk Gr. 5/6.”

18   In a Memorandum - seemingly to the Assistant Director (Staff Operations) and to the Assistant Director-General (Administration) - written by him on 17 May 1989, Mr. Ryan, after referring (inter alia) to the Memorandum from the Personnel Manager, wrote (inter alia) as follows:

“The situation at Strathfield, to state the obvious is a serious one and must be addressed urgently. Whilst I have some empathy to the Personnel Manager’s recommendations, I believe the matter to be more complicated.
You will recall that this Division, some 2-3 years ago proposed and had accepted by senior management, the concept of a Management Support Team, to assess and report on situations similar to the current problems at Strathfield. I have had a Relief Clerk at the college for some weeks and based on informal discussions with him and the attached reports, I consider a management support team to be appropriate.
Accordingly it is RECOMMENDED that a management support team be formed to review and report on the situation at Strathfield College of TAFE. The support team should comprise Ms. P. Bennett, Vice-Principal, Sydney Technical College and Mr. A. Majewski, Registrar, Seaforth College of TAFE.”

19   In the event, Mr. McLauchlan, the Assistant Director-General (Administration) determined that, in the first instance, Mr. Majewski should be seconded to the Strathfield College for the purpose of assisting Mr. Gleeson. However, as, for reasons which need not be entered upon, Mr. Majewski declined the secondment, the Assistant Administrative Officer (Colleges and Schools) Mr. B. Purcell at the request of Mr. Ryan undertook the secondment for the period 5-16 June 1989. During that period the Appellant was absent from the college from and including 8 June so that the greater part of Mr. Purcell’s time was spent with Mr. Gleeson. 20   At the conclusion of the period of his secondment, Mr. Purcell wrote and forwarded to Mr. Ryan a report which dealt with the position at the college as he saw it - which report was critical of both the Appellant and Mr. Gleeson - and, as well, on aspects of the staff position at the college and the grading of the position of Registrar. It is not necessary to set out that report in any great detail; the following extracts will give some indication of its comments:

‘OBSERVATIONS

My general observation was that Mr. Gleeson appeared disorganised and didn’t know how to organise his work, determine priorities, delegate etc.

It appeared the classic syndrome of paper work, mail etc. landing on the Registrar’s table and not moving either because he was not sure what to do with it or that he considered there was no one else available who could perform the required work.

………

The majority of my time at the college was spent with the Registrar on finances. Mr. Gleeson entered on duty at the college on 21st November 1988. Up to that point in time there had been no ‘Monthly Financial Statements’ submitted nor has he been able to retrieve the situation and determine what the colleges (sic) actual expenditure was and the commitments they had on hand.

………

Responsibilities for the college’s financial situation cannot be placed solely on the Registrar’s shoulders. Both the Principal and the Registrar are responsible for ensuring that the college does not exceed its resource allocations, neither officer should assume that funds are available for overtime, temporary assistance etc.
………

The staffing situation in the General Office I consider has exacerbated the Registrar’s problems. The General Office staff are for the most part relatively inexperienced. A considerable amount of time and effort needs to be spent on the development and training of the General Office staff and in the revision/development of administrative systems and procedures. Until this occurs the Registrar will continue to find it difficult to manage the college effectively.

……..


GRADING OF REGISTRAR

I consider in terms of supervisory responsibilities that the position of Registrar/Clerk Grade 2/3 Strathfield College of TAFE is undergraded.

………

To overcome this anomaly the grading of the Registrars (sic) position should be at the minimum Clerk Grade 5 level. … However the regrading of the Registrar’s position should not be done in isolation, regard needs to be had to the overall cumulative effect the regrading of the Registrar’s position at Strathfield will have on the grading of Registrar positions at other colleges.

…….
RECOMMENDATION
As the majority of my time was spent in an advisory capacity and bringing the financial matters up to date I consider the Registrar and the College still require assistance and as such the following is recommended :
(1) An officer from Colleges and Schools Administration Division or Registrar act as a mentor and assist Mr. Gleeson in developing and implementing administrative systems and procedures for a minimum period of 4 weeks.
(2) The grading of the position of Registrar Clerk Grade 2/3 Strathfield College of TAFE be reviewed having regard to the previously mentioned issues.
(3) Relief be provided for a 4 week period to overcome arrears of work.”

21   Mr. Ryan noted - seemingly for the information of Mr. McLauchlan - on 30 June 1989 as follows:

“Relief has been provided.
The issues at Strathfield are much more involved that (sic) providing the Registrar with a ‘mentor’. The whole question of the management team, its role & relationships needs to be addressed. My original recommendation to institute a Management Support Team at Strathfield still stands.
This whole question needs to be resolved as a matter of urgency.”

22   The fact that Mr. Purcell’s report contained material adverse to the Appellant, which material was not first put to her for comment, was the subject of Complaint No. 3. In this regard it is to be noted, first, that as I have earlier recorded, the Appellant was absent from the College for the greater part of the time that Mr. Purcell was at the College; and, second, that the case which the Appellant sought to make on the hearing before the Tribunal in relation to Complaint No. 3 was that Mr. Purcell’s attitude to the Appellant was significantly influenced by what was suggested to have been Mr. Ryan’s open hostility towards the Appellant. 23   The recommendations made by Mr. Ryan for the establishment of a Management Support Team, which recommendations were the subject of Complaints 4 and 5 were said to have been the product of Mr. Ryan’s hostility and antagonism towards the Appellant, which hostility and antagonism was said to have been the product of Mr. Ryan’s having been rebuffed when in 1977 he made sexual advances to the Appellant, allegations which as I will later record, were rejected by the Tribunal. 24   On 10 July 1989, Mr. McLauchlan, who had earlier written to Mr. Brinsden following receipt of Mr. Ryan’s memorandum of 17 May 1989, wrote again to Mr. Brinsden, on this occasion, as follows:

“Further to my minute of 29th May 1989, I enclose report and recommendations from the Acting Administrative Officer (Colleges and Schools) on the situation at Strathfield College of TAFE. It is clear that we can delay no further in taking action.
You indicated your intention to finally resolve Ms. Absolon’s claims about discrimination before we took the next step by meeting with the three officers concerned.
Although you may still wish to have this meeting, I recommend that Ms. Absolon be advised immediately that there are no grounds for her allegations of discrimination; she may then wish to proceed with her claim to the Anti Discrimination Board.
If you approve this recommendation, I will then release the Selection Committee’s Report on the Grade 2 principal’s appointment which you asked me to hold until Ms. Absolon’s situation was clarified.
Finally I will then arrange with the Assistant Director-General (Operations) for a management support team along the lines recommended by Colleges and Schools Division to be put in place at the college as quickly as possible.”

25   Mr. Brinsden, in company with Mr. McLauchlan, saw the Appellant on Monday 17 July 1989, at which time he informed her that in his view there was no basis for her allegations of bias against Ms. Brell and Mr. O’Reilly and the Appellant, so Mr. McLauchlan said, replied that, while disappointed with the result, the decision had cleared the air and she would be in a position to get on with her job. At the same time, Mr. Brinsden informed the Appellant of the decision to establish a management support team. 26   According to Mr. McLauchlan, he met separately with the Appellant following that meeting and discussed with her the basis for the work of the management support team. During that meeting, so Mr. McLauchlan said, the Appellant indicated her support for the approach proposed and expressed her hope that it would assist the overall management of the College. 27   On the same day the Appellant, who had earlier discussed with, and written to, Mr. McLauchlan expressing concerns about Mr. Gleeson, wrote again to Mr. McLauchlan, on this occasion (inter alia) as follows:

“As discussed with you by telephone some time ago, I am extremely concerned with the performance of duties carried out by the College Registrar, Mr. Charles Gleeson. The situation has now reached a critical stage from a number of perspectives, viz, effectual operations of the College office and secondly the effect on Mr. Gleeson’s mental and physical health.
………
The combination of all the above factors resulted in Mr. Gleeson being overloaded in his Registrar’s duties to which he was appointed. As the months have progressed it has become increasingly obvious that Mr. Gleeson has not been able to cope with the administrative and supervisory workload of his position. Mr. Gleeson and I have discussed the situation on numerous occasions - in particular his lack of confidence in his own abilities, his inability to make decisions, his extreme concern at signing any type of document, in particular those relating to payments of various descriptions and his inability to delegate.
It has become increasingly obvious that Mr. Gleeson is under extreme stress because of the situation and this is also compounded by family problems (viz his father undergoing open heart surgery and his mother suffering from Alheimers (sic) disease). Mr. Gleeson has demonstrated a willingness to work and in fact spent excessive hours at the College trying to achieve, however, there is little, if any, productivity evidenced from the excessive times spent at the College.
Mr. Gleeson has been provided with relief assistance from a number of sources over the last 6 months, however, the situation has not improved and requires urgent action by yourself to correct.
In my opinion, Mr. Gleeson is on the verge of a nervous and physical breakdown and unless the Department takes urgent action in relation to Mr. Gleeson, his health has suffered extremely. At the moment, he has little, if any, recall of discussions and of instructions, he contradicts himself constantly with instructions to office staff and teaching staff as well as information provided recently on a number of occasions to the Office of the Auditor General’s Department.
I consider it would be in Mr. Gleeson’s best interest to:
(1) Remove Mr. Gleeson from the Registrar position by way of transfer to another Grade 2-3 position with the duties and responsibilities which is (sic) not so stressful.
(2) To effect this transfer as a matter of urgency for the sake of Mr. Gleeson, as well as the operations of the College office.
(3) Appoint a team of at least two senior officers to restore the effectiveness of the College office operations.
(4) Review the grading of the position of Registrar, Grade 2-3 at Strathfield and upgrade the position to Registrar Grade 5-6 in line with duties and responsibilities of the position as a matter or urgency and take appropriate action to fill the position urgency.”

28   On 18 July 1989, Mr. McLauchlan writing on behalf of the Director-General wrote to the Appellant as follows:

“RE: COLLEGE MANAGEMENT
As a result of a review of the administration of Strathfield College of TAFE conducted by Colleges and Schools Administration Division, I have decided to send a Management Support Team to Strathfield College.
This team will consist of a Principal and a Registrar and in conjunction with yourself, the College Registrar and other College staff will assist and make recommendations on:
(1) The management and administrative practices of the College.
(2) The administrative systems and procedures and the operation at the College.
It is expected that the review will commence in the last week of July and will continue for a period of approximately four weeks.”

29   The Principal who was selected as part of the Management Support Team was Mr. Kretchmer, Principal of Padstow College, while the Registrar who was selected was Mr. P. Reardon, Registrar of Meadowbank College of TAFE. 30   On 19 July 1989, Mr. McLauchlan wrote to the Appellant, on this occasion, as follows:

“Thank you for your letter of 17th July 1989 regarding Mr. C. Gleeson.
As we discussed, you should make Mr. Gleeson aware of your concern and provide with a copy of your letter. The matter you raised regarding the effectiveness of the College office operations has already been covered by the establishment of the Management Support Team which the Director-General and I advised you of last Monday.
As with a number of other Colleges, the question of regrading the position of Registrar is under consideration and the Management Support Team may wish to include this in its work.
It is not appropriate to take any action in respect of transferring Mr. Gleeson until the Management Support Team’s report and recommendations have been assessed.

31   The decision to appoint the Management Support Team - so it was said - “without any matters on which the decision was based being first put to the Complainant for comment” was the subject of Complaint No. 6 - which alleged unlawful discrimination of the grounds of sex - and Complaint No. 7 - which alleged unlawful victimisation “because the (Appellant) made a complaint of discrimination to the Anti Discrimination Board against the Respondent in April 1989 and/or because in June 1989 the (Appellant) gave information to the Anti Discrimination Board in respect of a complaint against the Respondent on the grounds of race made by Dr. Badve”. In relation to the claim of victimisation it is to be noted, first, that, on the hearing before the Tribunal, that complaint was based in part upon evidence given by a Mr. Waite that, in February 1989, he had heard Mr. Puffett say that “they would get her” in relation to the Appellant, which evidence was rejected by the Tribunal which accepted Mr. Puffett’s denial that that had occurred; second, that the complaint made by the Appellant to the Board in April 1989 lapsed in July 1989 when the Appellant failed to provide to the Board information to substantiate her allegations, which information had earlier been sought by the Board; and third, insofar as the claim of victimisation was based on the Appellant’s alleged support of Dr. Badve, that complaint was rejected by the Tribunal and was not the subject of appeal. 32   The review carried out by the Management Support Team commenced on Monday 24 July 1989 and concluded on Friday 18 August 1989. The procedures adopted by the Management Support Team in the course of their assessment were the subject of Complaints 8 and 9 and were alleged to have been “improper, unfair, prejudicial and discriminatory” and were said (Complaint No. 8) thereby unlawfully to have discriminated against the Appellant on the grounds of her sex and (Complaint No. 9) were said to have been employed by reason of the Appellant’s having made her complaint in April 1989 and because of her support for Dr. Badve. As best as one can judge it from the submissions advanced by Senior Counsel for the Appellant on the hearing of this appeal, the basis for those complaints was that the concept of a Management Support Team was, not one of assessment and recommendation, but merely one to provide support and advice, a submission which the evidence (see Mr. Ryan’s Memorandum referred to in 18 (above) and Mr. McLauchlan’s letter referred to in 28 (above) does not seem to support. 33   In the report which the Management Support Team provided to Mr. McLauchlan on 29 August 1989, Messrs. Kretchmer and Riordan dealt with management systems, management practices, educational planning, financial management, personnel practices, student issues, buildings and equipment, and other matters. It is unnecessary to record in any great detail the contents of the report, the following extracts being sufficient to indicate its general nature:

“4.1 MANAGEMENT SYSTEMS
Prior to 1988 and due to the stability of College administrative staff, management systems were apparently effective.
However, from the beginning of 1988 such systems have deteriorated to a level which, from the Principal’s comment and our assessment, are now not operating effectively.
………
4.2 MANAGEMENT PRACTICES

The leadership role of both the Principal and Registrar in any College and more particularly a Grade 3 or Grade 4 College plays an important part in implementing effective management practices in that College and to all levels of staff. Ultimately however, the Principal is responsible for the effective operation of the College.

In assessing this area the support team identified a number of major issues which have contributed towards industrial unrest within the College.
The success of effective team management between the Principal and Registrar has been varied. The majority of people interviewed expressed negative comments relative to team management relations, present and past. The present Registrar and Principal ceased harmonious working relationships in approx April/May 1989. Both stated this fact.
………
The absence of the Principal, for whatever reason, it resulted in greater demands being placed on the Registrar. Decisions made by him are often overturned by the Principal.
………
4.4 FINANCIAL MANAGEMENT
There are no current effective management practices in place. This situation has been evident for quite a long period and even though head office has provided relief staff to perform specific functions e.g. update drawing account, prepare monthly expenditure reports, no forward benefits have resulted, the officers have either become the de facto Registrar or found insufficient records/systems to complete the task.
………
Control mechanisms and management practices currently operating at the College do not provide the level of accountability expected of College management under departmental policy. The sum total of the previous inadequacies has resulted in freezes of funds by both Principal and Registrar; exceeding the overdraft on the College drawing account; dishonour of College drawing account cheques; non-payment of supplies and College officers or late payment of account.
………
CONCLUSIONS
………
Of major concern to the operations of the College is the lack of effective team management practices particularly involving the Principal and Registrar. Their leadership roles have been widely criticised by staff, their management roles are causing conflict and the status of the College Registrar as a member of the college executive has been eroded. The present Registrar’s inability to make decisions or guarantee action concerned the support team. Collectively this has led to industrial unrest and low morale within the College. The Principal is at her ‘wits end’ and the Registrar is suffering ill health and not coping with the situation.
………
The end result is a situation which could only be described as crisis management. The Principal, Registrar and office staff are mainly occupied in repair management activities. Educational planning especially involving sectional management in proper planning and monitoring practices was not evident. The matching of human resources and current rostering practices are not fully utilising the College establishment.
Financial management practices are deficient.
………
Personnel practices relating to both recruitment and induction are poor. The slow filling of vacancies, particularly that of Registrar and Head Teacher appointments (Textiles), the use of temporary staff in preference to filling vacancies and high staff turnover in the College administration have created an unstable environment leading to ineffective administrative practices.
The grading of the Registrar is inadequate allowing for the size of the non-educational establishment (27.4) (EFT) and the seniority of that position compared to the Technical Officer and Librarian.
………
7. RECOMMENDATIONS
1. Urgent departmental action be taken to restore effective and stable college management.
2. A project team comprising both educational and non-educational officers should be seconded to restore effective management and administrative systems and practices.
3. The management systems and practices particularly involving communication, planning and monitoring processes and resource management practices must be restored to effective operational levels and implemented.
4. Staff training particularly at senior staff level is required to implement recommendation 3.
5. The appropriateness of all current College vacancies should be investigated and reviewed where appropriate to meet the present College support needs and urgent action taken to then fill substantively such positions.
………
8. The Department should review the relative grading of the position of Registrar Grade 3 Metropolitan Colleges.”

34   After the report of the Management Support Team had been given to Mr. McLauchlan, he and Mr. Puffett - who appears by then to have become the Assistant Director-General (Operations) - discussed its recommendations with Mr. Brinsden. It would seem that Mr. Brinsden’s initial reaction to the report was that it justified the dismissal of the Appellant. In an Affidavit sworn by him for the purpose of the proceedings before the Tribunal, Mr. McLauchlan deposed (inter alia):

“21. When the report was submitted the Assistant Director-General (Operations) and I discussed its recommendations with the Director-General. My advice was that the recommendations did not provide a basis for dismissal, demotion or disciplinary action against the Principal or the Registrar. The latter had not demonstrated his capacity to continue with sole responsibility for administrative functions at Strathfield, and had acknowledged his difficulties in doing so. The Director-General concurred with my decision to transfer Mr. Gleeson to an Assistant Registrar position which would involve lesser responsibility under the supervision of senior officers but without a reduction in grade.
22. Mr. Puffett suggested a management attachment and training programme for the Principal which I supported.”

35   The evidence of Mr. McLauchlan in this respect appears to have been corroborated by Mr. Puffett, the evidence of both of them being accepted by the Tribunal. In the result, the decision which was reached was one to require the Appellant to undertake 12 months re-training as part of a Management Attachment Scheme. 36   Neither Mr. Brinsden, Mr. McLauchlan or Mr. Puffett called for a response by the Appellant to the report of the Management Support Team prior to her being ordered to do re-training. The Judgment of the Tribunal records in this respect:

“The failure to show (the Appellant) the report was conceded by Mr. McLauchlan and Mr. Puffett to have been unfortunate. Mr. Brinsden was wanting a quick resolution of the problem. There was threatened industrial action at the college arising out of the visit of the Management Support Team which the (Appellant) was promoting vigorously and the college was in urgent need of administrative assistance.”

37   At a meeting held with the Appellant on the morning of 6 September 1989 by Mr. McLauchlan and Mr. Puffett in the presence of Mr. G. Devlin, Acting Director (Staff) the Appellant was informed of the decision which had been taken. At the time the Appellant asked whether she might see a copy of the report and was given a copy of it. 38   Later that day Mr. Puffett wrote to the Appellant a letter in the following terms:

“I refer to our meeting this morning concerning the Management Support Team’s findings related to Strathfield College of TAFE.
As indicated at the meeting, careful consideration has been given to the recommendations and, as a consequence, you will be seconded under the Management Attachment Scheme for a period of 12 months to a number of College Principals so that you will have the opportunity to observe the management style in various Colleges.
Each attachment will be of one terms duration with the first attachment commencing on Monday 11th September 1989. The schedule of attachment is indicated below.
11th September 1989 Bankstown College of TAFE (to observe
College Operations)
Term 1, 1990 Gymea College of TAFE (to observe
Principal-Registrar relationships and
College office operations)
Term 2, 1990 St. George College of TAFE (to observe
staff management techniques and
diversity of operations)
Term 3, 1990 External Studies College of TAFE (to
observe administrative systems and
operations and to be exposed to unique
TAFE operations)
You are required in consultation with the host Principal to develop an action plan and strategies with prescribed outcomes for each of the separate attachments. At the completion of your attachment programme, a review will be made of your return to normal duties. Whilst on attachment you will retain your status and salary as substantive Principal Grade III Strathfield.
Should you require to discuss any of these issues you might contact me on the above number.”

39   Later on 6 September 1989 the Appellant spoke to Mr. Puffett on the telephone when, according to her in an Affidavit sworn by her, the following occurred:

“4. … I … said to (Mr. Puffett) ‘The Report is full of garbage. Why haven’t the normal consultation procedures been carried out? You have plummeted to the bottom of the pit as a Manager in my estimation. I am surprised at you condoning an execution without first giving me the right of reply. I want the right of reply before I take up the Management Attachment Scheme’. He said ‘Are you finished’. I said: ‘Yes for now’. He hung up.”

40   Later that day Mr. Puffett wrote again to the Appellant, on this occasion, as follows:

“I refer to your telephone call at approximately 3.00 p.m. on Wednesday 6th September 1989 concerning our earlier meeting regarding the Management Support Team Report. Amongst a number of comments made, you informed me that you had no intention of leaving Strathfield College (to take up the Management Attachment Scheme).
You are hereby directed to report for duty under the Management Attachment Scheme to the Principal of Bankstown College of TAFE at 9.00 a.m. on Monday 11th September 1989.”

41   The decision to require the Appellant to undertake re-training before giving her the opportunity to comment on the report of the Management Support Team was the subject of Complaints 10 and 11, the former Complaint asserting that the Respondent thereby unlawfully discriminated against the Appellant on the grounds of her sex, and the latter Complaint asserting that decision was made because the Appellant had made a complaint to the Board and/or because the Appellant had given information to the Board in respect of the complaint made by Dr. Badve. In this respect it is convenient here to note, first, that in its Judgment the Tribunal recorded (inter alia): “The (Appellant) makes no complaint of discrimination against Mr. Brinsden, saying only that he was unfair.”; second, that it was as the result of the intervention of Mr. McLauchlan and Mr. Puffett that Mr. Brinsden’s first reaction - that the Appellant ought to be dismissed - was softened; and, third, that, as I have earlier recorded, during July 1989 the Appellant’s complaint to the Anti-Discrimination Board had lapsed and the Appellant’s complaint of victimisation based on her alleged support of Dr. Badve has been rejected and that rejection has not been made the subject of appeal. 42   On 7 September 1989 Mr. Gleeson was transferred to another College - seemingly the North Sydney College of TAFE - as Assistant Registrar. 43   The fact that, although the Appellant was required to undertake re-training, Mr. Gleeson was transferred to another College “without loss of any rank, prestige or any entitlements” was the subject of Complaints 18 and 19, the former Complaint asserting that, in the circumstances, the Respondent had unlawfully discriminated against the Appellant on the grounds of her sex, and the latter Complaint asserting that that course had been adopted by reason of the fact that the Appellant had earlier complained to the Board and, so it was said, had supported Dr. Badve in his complaint, and, thus, the Respondent had unlawfully victimised the Appellant. In this regard it is convenient to note, first, that, as I have earlier noted, the Appellant, although seconded, retained her status as the substantive Principal, Strathfield and did not suffer any loss of salary or other entitlements; second, that Mr. Gleeson was transferred rather than “allowed to transfer”; and third, that, as I have earlier noted, the Appellant herself had earlier sought to have Mr. Gleeson transferred and to have the position of Registrar upgraded to that of, and filled by, a person of the status of a Clerk Grade 5/6; fourth, that on 11 September 1989, a relieving Registrar Grade 5/6 commenced at the College and continued for a period of approximately 12 months during which period the established position was changed from that of Registrar Grade 2/3 to Registrar Grade 4/5. 44   On 9 September 1989, the Appellant wrote to the President of the Board as follows:

“URGENT: DISCRIMINATION/VICTIMISATION
Could you please intervene urgently on my behalf with the Department of TAFE in relation to a directive I have been given to leave my current position as Principal, Strathfield TAFE College (see attached).
This action by TAFE has been done in such a fashion as to deny me the right to appeal regarding this proposed so-called ‘Staff Development Activity’ which is nothing else other than punitive treatment under another guise.
TAFE’s actions - in short - are discriminatory and biased, and malicious. To my knowledge there is no precedent in TAFE.
The directive for me to leave the College was given to me on Wednesday 6 September 1989, without having been given the opportunity to:
(a) read the document on which TAFE based its decision to move me;
(b) reply to or refute the ‘allegations’ in the document;
(c) contrary to the terms of reference, participate in the formalisation of the assessment and recommendations of the document.
During the process of the system’s review at the College (a review which was based on another so-called ‘report’ on the administration of this College which I had also not seen or even knew of its existence) extreme concern was expressed by numerous staff members to me and the TAFETA representative that a ‘witch hunt’ was in progress.
These concerns were relayed to the Senior Management of TAFE and the Review Team.
I am aware of male TAFE Principals who have had problems in their Colleges, but have not been subjected to review nor compulsory staff development. I consider I have been singled out for punitive action without recourse because I am a female manager and - co-incidentally presently supporting a staff member who has lodged an official Anti-discrimination Complaint with you on the basis of racial prejudice which is presently under investigation.
I seek your urgent assistance in obtaining an injunction against TAFE preventing them from enforcing their directive on 11th September 1989.
I have been advised by the Director-General of TAFE at approx 5.00 p.m. on Friday 8th September 1989 that I would be suspended from duty if if (sic) I refused to abide by the Directive, and report for normal duties at Strathfield.
As you can see the situation is critical. It requires urgent action as the consultative process has broken down to the point where my only alternatives are to either resign or be suspended.
A crucial factor in all of this is the lack of consultation and time to redress the issue (sic) to which I have College staff and union support.
A Senior Officer of TAFE will be at the College on Monday 11th September 1989 at 10.00 a.m. If I am here at that time - and I intend to be - I will be suspended.
I formally requested the Department to charge me for incompetence, negligence and/or dereliction of duty. I was advised that it was not considered that I was any of those things however, the directive would stand for compulsory removal from the College in the minimum possible time!
I need your urgent intervention - please. I am desperate and cannot tolerate any more harassment, discrimination or victimisation.”

45   Despite the fact that the Appellant claims to have suffered a nervous breakdown over the week-end of 9-10 September 1989, she was, as she had foreshadowed in her letter to the President of the Board, in attendance at the College on 11 September 1989. Thereafter, so the Appellant claimed, she ceased to work and was unable to do so for about 2 years. 46   Although it is not entirely clear when this happened, it would seem that, at some time after the Appellant ceased work at the College, she was replaced, first, by a relief Principal, Mr. Webster and, thereafter, by a replacement Principal. 47   Eventually, but not until February 1990, the Appellant delivered what was described as “Principal’s Reply To Management Support Team Report”. This was a lengthy document of some 32 pages and was accompanied by a number of Annexures - the originals, or copies, of many of which appear to have been taken by the Appellant from the College records - totalling some 130 pages. The burden of the “Principal’s Reply” is sufficiently indicated by several of the opening paragraphs, which were in the following terms:

“In my response to the MST report, I will demonstrate that I have not been derelict in my duties as Principal, Strathfield TAFE College, nor have I neglected my responsibilities as a College manager, as the MST Report suggests. It will be shown that my actions were justifiable and essential to ensure conformity to legislative requirements, Award conditions and TAFE policies and regulations .
In fact, it will be obvious that - during my term as Principal - I have positively addressed and overcome major problems remaining from a decade of previous neglect.
There is no argument with the fact that the Principal bears the overall responsibility for College management. However, any management review and subsequent report requires that it be thoroughly authenticated, disclose all relevant details and be free of innuendo. The Management Support Team Report does not conform to these specifications. In fact, it does almost the opposite as is evidenced by the Statutory Declarations and documents tabled with my response.
A careful analysis of the MST report will show that Messrs. Kretchmer & Reardon do not substantiate their numerous allegations. It is my contention that the MST report is biased in content, full of innuendo and critically represents the management situation at Strathfield. In my opinion, the MST report:
(a) ignores factual data provided to MST by Principal and staff ;
(b) is contradictory ;
(c) misrepresents comparisons, information, and situations .”

48   Despite the general tenor of the “Principal’s Reply” indicated by the paragraphs which I have just set out, it is to be noted that, not only did the Appellant not deny that there had been problems at the Strathfield College, but that, in her Reply and in the supporting documents, numerous examples of problems were recorded. 49   On 15 March 1990, the Appellant had an interview with Mr. Brinsden. In its Judgment the Tribunal recorded, in relation to that interview:

“The (Appellant) produced her notes of her interview with Mr. Brinsden. At the meeting Mr. Brinsden said that he had read the report (sic) and would not change his mind. He indicated the areas of concern to him were:
Accountability
Inability to motivate people
Target setting
Planning.”

50   In a letter written by him to the Appellant on 15 March 1990, Mr. Brinsden wrote:

”With respect to your reply to the Management Support Team report, I have reviewed the contents of your report and I find that the original decision to transfer you to a management attachment scheme at a number of colleges is confirmed.
Accordingly I hereby direct you to attend Gymea College on Monday 19 March for a management attachment scheme with John McSweeny the Principal and Sam Lees the Registrar for the period up to Friday 27 April 1990. Subsequently on Monday 30 April, you are to report to the Acting Principal of Bankstown College and Ian Aggett the Registrar for a management attachment scheme until May 21st. Subsequently on Tuesday 22nd May a meeting will be held in this office to review progress and if required to set additional management attachment schemes. This will be discussed with you at that meeting.
I would appreciate your compliance with this direction and confirmation in writing to be received in this office by Monday, 19 March 1990.”

51   Each of Complaints 20 and 21 asserts that “having called for a response by the (Appellant) to the report of the Management Support Team and having reached a conclusion as a result of that report that there was no specific finding against the (Appellant), (the refusal of the Respondent) to withdraw the order that the (Appellant) undertake retraining under the Management Support Team” thereby discriminated against the Appellant (Complaint 20) and, for the reasons to which I have earlier referred, unlawfully victimised the Appellant (Complaint 21). In these circumstances, it is convenient, here, to record that, following the passage from its Judgment to which I have just referred, the Tribunal continued:

“The Tribunal heard lengthy evidence from the relief Principal, Mr. Webster, and he gave evidence of a number of administrative shortcomings at the College. Mr. Webster, the replacement Principal, and Mr. Reardon, the Registrar who wrote the MST report, both gave convincing evidence that the Principal’s Response failed to refute the MST Report.
The (Appellant) alleged that there was no specific finding against her. The evidence of Mr. Webster and Mr. Riordan and the notes of interview with Mr. Brinsden indicate that there were a number of administrative areas that needed attention. During the hearing the (Appellant) did show the assertion that cheques had been dishonoured was not true but she was unable to rebut the Respondent’s numerous other concerns about the management of Strathfield College.
The Tribunal notes the Complainant’s view that the Director-General, Mr. Brinsdel’s initial decision was free of discrimination against her on the ground of sex. Mr. Puffett and other senior officers who acted to reduce progressively the initial decision of the Director-General, from a penalty of dismissal first to 12 months retraining then to 3 months retraining, must also be free of the same criticism.”

52 By letter dated 25 March 1990 addressed to the President of the Board, which letter was some 23 pages in length and, as it would appear, was accompanied by some 79 pages of what had been described as “supporting documents” the Appellant elaborated upon the complaint which she had lodged with the Board in September 1989. 53 Over the course of the following 18 months or thereabouts, the Board carried out investigations into the Appellant’s complaints and, as provided for in s.92 of the Anti-Discrimination Act 1977 (“the Act”) the President (or his delegate (see s.94A(2)) sought to resolve the matter by conciliation. In the event, however, after a number of conciliation conferences had been held without result, the President, in September 1991, referred the matter to the Tribunal for determination pursuant to s.94(1) of the Act. 54 In its Judgment, the Tribunal records:

“After several preliminary mentions and a change in the solicitor advising the (Appellant), the (Appellant) sought to amend her Points of Claim by dividing the Complaint into 26 separate complaints. The amendments were referred back to the ADB which advised that, after receiving submissions from both parties, it would not accept certain of them because they were out of time. However, the Board did authorise the (Appellant) to proceed with the remaining complaints. The final document filed with the Tribunal listed 21 complaints consisting of discrimination and victimisation. The expansion of the complaint in this matter dramatically changed its nature; the amount claimed was now $840,000 and counsel for the (Appellant) argued that such amount truly reflected the damage to the health and career of his client.
The Tribunal was concerned by the use of such a technique, but the terms of the Act require the Tribunal to accept matters referred to it by the ADB. At the same time, the Tribunal did not believe it was bound to treat as separate and distinct each act of discrimination alleged where the Tribunal found in fact that they were facets of a single matter.”

55   The significance of the Tribunal’s comments in the second of the paragraph which I have set out above is made clear when one reads the complaints which I set out in the Schedule to this Judgment. 56   As Fitzgerald JA has recorded in his Judgment, the hearing before the Tribunal was an extended one commencing, as it did, on 16 November 1992 and not being concluded until September 1994 when, as it would seem, the Tribunal heard oral submissions. Prior to that time, however, the parties had filed written submissions covering some 427 pages, the Appellant’s submissions in chief being of the order of 110 pages, the Respondent’s submissions being of the order of 260 pages and the Appellant’s submissions in reply encompassing 56 pages. 57   When it came to deliver its Judgment on 21 December 1994 the Tribunal dismissed all 21 of the Appellant’s complaints. 58   Despite what can only be described as the inordinate time spent on the hearing before the Tribunal, during which hearing, if the written submissions for the parties are to provide any guide, any and every byway, whether of the slightest relevance or not, was explored at inordinate length, in the Amended Summons which was filed on her behalf, with which Amended Summons Simpson J was concerned to deal, the Appellant sought to challenge the decisions of the Tribunal on ten only of her complaints, those complaints being numbers 6-11 and 18-21 and even in respect of those Complaints Nos. 7, 9, 11, 19 and 21 which alleged victimisation, no challenge was made to the decisions of the Tribunal dismissing those complaints so far as those complaints were said to have been grounded upon the Appellant’s alleged assistance to Dr. Badve. These facts are, as it seems to me, of some significance for the following reasons:

1. despite the fact that the dismissal of Complaints 1-5 - which complaints were, on the hearing before the Tribunal, ultimately based upon what was said to have been the hostile and antagonistic attitude of Mr. Ryan toward the Appellant, and the submissions to support which complaints involved an extended attack upon, in particular, the character and credibility of Mr. Ryan, Mr. O’Reilly and Mr. Purcell - was not - at least, not in terms - the subject of the application dealt with Simpson J, it appears that, on the hearing before Simpson J, as also was the case on the hearing of this appeal, the Appellant’s counsel persisted in attempting to base the Appellant’s case on the alleged hostility and antagonism which Mr. Ryan was said to have held for the Appellant. Thus, in the “Appellant’s Written Submissions: Facts” on this appeal (p. 6) the following appears:

“Michael Ryan held the position of Administrative Office (Colleges and Schools). In this role he was the link between the various Registrars in the colleges and schools and the Assistant Director-General James McLauchlan. It was the appellant’s case that Mr. Ryan had a long-standing personal animosity towards the appellant, and a highly critical view of her performance as an administrator. It was also the Appellant’s case that Mr. Ryan used his position as Administrative Officer (Colleges and Schools), and thus his close working relationship with Mr. McLauchlan, to influence Mr. McLauchlan against the Appellant. This does not seem to have been considered at all by the (Tribunal);”
On the hearing of this appeal, Mr. J. B. Bishop, with whom Mr. B.W. Rayment QC appeared, for the Appellant (and who followed his leader “on the facts” (see T.19-20) sought to elaborate upon this submission (see T. 21-23). In the light of the fact that when, in the course of its Judgment the Tribunal came to deal with Complaint 1, it wrote (AB 260) (inter alia) as follows:
“For the (Appellant) to succeed with this complaint it would have been necessary for her to convince the Tribunal that:

· The events at the Mudgee Dinner Party did occur in the manner in (sic) which she described

AND

· Mr. Ryan had been so incensed by her rejection of him in 1977 that he continued to seek opportunities to damage the career of the (Appellant) until 1986.

The Tribunal was satisfied on the evidence presented to it that neither of these conditions was fulfilled:

- the Tribunal ‘s conclusion being clearly based, at least in part, on its assessment of the credibility of the Appellant as a witness - and in the light of absence of any attempt to challenge that conclusion, the submission is revealed as being without substance and one which, in my view, ought not to have been advanced.


2. as a result of the absence of any challenge to the Tribunal’s decisions in relation to the Complaints 1-5 and 12-17 - eight of which complaints had asserted unlawful discrimination and three of which complaints had asserted unlawful victimisation - attention appears, on the hearing before Simpson J, as also occurred on the hearing of the appeal, to have been diverted from what the Tribunal had written in relation to those complaints. What the Tribunal has written is indicated in the passages which I set out below.

When dealing with Complaint 2 - that is the complaint relating to the 1988 Selection Panel - the Tribunal wrote (AB 363) (inter alia):

“During the Tribunal hearing the (Appellant) alleged that Mr. O’Reilly was a friend of Mr. Ryan’s and that he had been influenced by Mr. Ryan’s hostility to the (Appellant). The (Appellant) alleged that Mr. Ryan had been able to manipulate Mr. O’Reilly to treat the (Appellant) unfairly during the interview of 24 March 1988.
Having rejected the proposal of a discriminatory attitude by Mr. Ryan toward the (Appellant) based on the Mudgee dinner party, the Tribunal also had difficulty in accepting that there was any link between Mr. Ryan and the conduct of one member of the 24 March 1988 Selection Panel which could cause discrimination, resulting in the (Appellant) not receiving an appointment.”

When dealing with Complaint 3 - that is, the Purcell Report - the Tribunal wrote (AB 364) (inter alia):

“Mr. Purcell wrote a report critical of both Mr. Gleeson and the (Appellant), and it was more critical of Mr. Gleeson. He did not show the report to the (Appellant) and there is no evidence that he showed it to Mr. Gleeson.
In evidence he said that he did not believe there was any point in putting his views to either of them because he did not believe it would achieve anything - they were both blaming each other for the problems at the college and they were both at arms length.
The Tribunal is unable to accept the (Appellant’s) submission that Mr. Purcell did not refer the report to the (Appellant) because ‘he well knew Mr. Ryan’s animosity toward the (Appellant)’ as there was no evidence which would indicate that Mr. Purcell acted in this way in accordance with any instructions from Mr. Ryan, or, indeed, to gain any favour from Mr. Ryan.”
In relation to Complaints 4 and 5 - those complaints dealing with Mr. Ryan’s recommendation for the appointment of a Management Support Team - the Tribunal wrote (AB 365) (inter alia):

“The Tribunal, having heard the evidence, rejects both 4 and 5 as separate causes of complaint; it can only be one or the other. The difference as to whether the alleged act occurred prior to 17 May 1989 or on 30 June 1989, after Mr. Ryan had the Purcell Report, does not appear to be material.
The fact of Mr. Ryan making a recommendation for a particular cause of action is not sufficient for a complaint unless a detriment arose as the result of the recommendation. In this instance the detriment (if it occurred) could not arise unless his recommendation was adopted by the Respondent.
In fact, the Respondent did take action based on his recommendation and other data and the next complaint (No. 6) adequately deals with these events which, in the view of the Tribunal, cannot be separated.
The Tribunal rejects the allegation that Mr. Ryan discriminated against the (Appellant) on the grounds of sex and/or characteristics that are generally imputed to persons of her sex for the reasons given in Complaint 1.”

Although, in its Judgment, the Tribunal did not deal with those complaints which were based upon victimisation seriatim or in as extended a way as it dealt with the Appellant’s claims based on discrimination on the grounds of sex, the following passages in its Judgment will reveal the approach taken by the Tribunal in relation to those complaints which were based on discrimination on the grounds of sex. At AB 380:

“The (Appellant) has been a persistent complainer in the past and had indicated that she was intending legal action against Ms. Brell and Mr. O’Reilly, as well as having them banned from any future selection committees.
The Tribunal believes that the senior officers of the Respondent were aware that the (Appellant) was pursuing a wide agenda of complaints. It is the view of the Tribunal that other factors had far more influence on the relevant decisions of the Respondent. The decision to send in the Management Support Team was taken in order to find out what was wrong; it was not, in the view of the Tribunal, taken to punish the (Appellant) because she had had the temerity to go to the Anti-Discrimination Board (Complaint 7). Nor, indeed, were the procedures utilised by the Management Support Team the result of a similar punitive policy (Complaint 9) or the failure to give to the (Appellant) the matters adverse to her in the Management Support Team Report for her to comment on (Complaint 11).
The (Appellant) also argued that the failure of the Respondent to advertise the secondment, as required by the Respondents own published procedures, occurred because of this intent to punish her or block her progress (Complaint 13). The Tribunal was provided with no evidence which, in its view, established that argument. There was no evidence that TAFE’s actions, complained of in Complaints 17, 19 and 21 were to victimise the (Appellant).
Accordingly, the Tribunal is of the view that the (Appellant) has failed to substantiate her complaints of victimisation based on the allegation that the Respondent acted in a certain way to her detriment because of its knowledge that she had brought proceedings against the Respondent under the Act.
In separate allegations the (Appellant) has invoked the provisions of s.50(1)(b) which provides that it is unlawful for any person to be victimised because that person has given evidence or information in connection with proceedings against the discriminator or any other person under the Act.
………
There was no evidence of any of the key officers of the Respondent being briefed by (the TAFE Legal Officer who was handling Dr. Badve’s complaint), of their having any knowledge of the (Appellant’s) view, or, indeed, of any connection between the (Appellant) and Dr. Badve. Accordingly, the Tribunal was not satisfied that the (Appellant) has proven that she suffered detriment because the Respondent or its officers knew that she had given evidence or information in connection with the proceedings against the Respondent or any other person brought by Dr. Badve under the Act.
In particular, the Tribunal was not convinced that the alleged support of Dr. Badve by the (Appellant) in any way influenced the decisions to appoint the Management Support Team, the procedures employed by it, the order seconding the (Appellant) to the Management Attachment Scheme without having her comment thereon or advertising it first, or the continuation of that secondment, as alleged in Complaints 7, 9, 11 and 13; nor did it affect the considerations of the Respondent as to the effect of such steps on the health of the (Appellant) as alleged in Complaint 17, or as to alternative ways of dealing with problems which were identified at the Strathfield College, as alleged in Complaint 19.
Finally, the Tribunal can see no grounds for accepting that the continuation of the secondment for a short period, as alleged in Complaint 21, was in any way related to the (Appellant’s) support for Dr. Badve.”

59 Insofar as is relevant to the present appeal, the Act provides as follows:

“4A. Act done because of unlawful discrimination and for other reasons.
If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),
then, for the purposes of this Act, the act is taken to be done for that reason.
………
24. What constitutes discrimination on the ground of sex
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person’s sex … the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex …
………
(1A) For the purposes of subsection 1(a) something is done on the ground of a person’s sex if it is done on the ground of the person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
………
25. Discrimination against applicants and employees
………
(2) It is unlawful for an employer to discriminate against an employee on the ground of sex:
(a) in the terms or conditions of employment which the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
………
50. Victimisation
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;
………
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
………
94. Reference of complaints to the Tribunal
(1) Where the President:
(a) is of the opinion that a complaint cannot be resolved by conciliation,
(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal
the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint.
………
96. Inquiries into complaints.
The Tribunal shall hold an inquiry into each complaint or matter referred to it under s. … 94(1) … .
97. Single inquiry in relation to several complaints.
Where the Tribunal of the opinion that two or more complaints arise out of the same or substantially the same circumstances or subject matter, it may hold a single inquiry in relation to those complaints.
……..
117. Reasons for decision or order
(1) Where the Tribunal does not state its reasons for any decision or order made in relation to an inquiry, a party to the inquiry may, by notice in writing served on the Tribunal within 7 days after the date of that decision or order, require the Tribunal to state its reasons.
………
118. Appeals
(1) A party aggrieved by a decision or an order of the Tribunal may appeal to the Court on a question of law
(a) … within 21 days after the date of that decision or order
………
(2) An appeal shall be made in accordance with the rules of Court.
(3) The Court shall hear and determine the question of law arising on the appeal and shall:
(a) remit the decision of the Court thereon to the Tribunal, or
(b) make such other order in relation to the appeal as to it seems fit.
………”

60 It is thus clear that unless what is involved is a question of law, no appeal lies from a decision or order made by the Tribunal following an inquiry into any complaint or complaints referred to it by the President of the Board. 61 The issues which were tendered for the determination of the Tribunal on the hearing of the Appellant’s complaints were issues as to the motivation of the Respondent - or of its relevant officer or officers - in taking actions relating to the Appellant. Thus, the complaints based on s. 24 of the Act, if they were to be upheld, required the Tribunal to find that the relevant action, or actions, was, or were, taken “on the ground of the (Appellant’s) sex” while the complaints based upon victimisation, if they were to be upheld, required the Tribunal to be satisfied that the relevant action, or actions, was, or were, taken by the Respondent - or the relevant officer or officers of the Respondent - on the ground that “the (Appellant) had (brought proceedings against) the (Respondent) or given evidence or information in connection with proceedings brought by (Dr. Badve) against (the Respondent) under (the Act)”. Issues as to the Respondent’s motivation - or the motivation of the Respondent’s officers - were purely questions of fact. Although I would have thought no authority was needed for that proposition, if authority be needed see, Cox v. Smail [1912] VLR 274 per Cussen J (as he then was); Barton v. Armstrong [1976] AC 104, 122 per Lord Wilberforce and Lord Simon of Claisdale. 62 The Tribunal having found that it was not satisfied that any of the actions the subject of the several complaints was, or were, motivated upon the relevant grounds, the case at first instance was as, is this appeal, concerned with findings of fact which are not subject to appeal, even if perverse (see Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139) - for an appeal to be competent the Appellant must demonstrate the existence of some error of law on the part of the Tribunal. 63 As Fitzgerald JA has recorded in his Judgment, the Appellant’s argument on the hearing before Simpson J vacillated. Thus, as her Honour recorded (AB 391):

“Senior counsel (for the Respondent) further sought precise identification of the question of law on which the appeals were based. In each case that question was ultimately identified as a failure to take account of relevant considerations in the decision making process.”
and later (AB 393):

“Although the question of law was framed in terms of failure to take account of relevant considerations, it became apparent that the real complaint concerned the reasons given by the Tribunal for its decision. The case therefore raises the difficult question of the extent to which a quasi judicial body is obliged to give reasons for its decisions, and whether he failure, (if shown), to meet that obligation constitutes error of law.”

64   The same pattern was repeated on the hearing of the appeal, as Mr. Rayment, when called upon to identify the point of law involved, asserted, first (T. 4), that “The point of law here is that they didn’t give reasons” but, later (T. 6), that the Appellant sought to demonstrate that the Tribunal had failed to take into account material considerations as reflected in the evidence. Further, when, in the course of his following Mr. Rayment, Mr. Bishop turned to deal with what were said by him to be relevant facts, he, as I have earlier noted, devoted a great deal of time to what was said to have been the position, the attitudes and the actions of Mr. Ryan despite the fact that Complaints 1 to 5, which were said to have been based on those matters, had been rejected by the Tribunal and were not the subject of any challenge before either Simpson J or on the appeal; and, second, devoted what I can only describe as very little time to the material said to show discrimination on the ground of sex and even less time to what was said to be material devoted to demonstrating victimisation. Quite how disordered were the submissions is illustrated by the approach taken in relation to Complaints 6, 8 and 10, that is, complaints concerning the establishment of the Management Support Team, the procedures adopted by the Management Support Team when at the College, and, the decision by Mr. Brinsden to require the Appellant to undertake retraining without having first given her an opportunity to consider, and to comment upon, the report of the Management Support Team. The case which the Appellant sought to make before the Tribunal and, as it seems, before Simpson J, and on the appeal was, at first, that there was an established culture within TAFE among the senior male officers of opposition to women, that culture being reflected in the conduct of Mr. Ryan, and of Mr. McLauchlan and of Mr. Puffett each of whom, so it was said, was influenced by Mr. Ryan. When it was pointed out, in the course of argument on the appeal, that, when consideration was given to the action that might be taken in response to the report of the Management Support Team, both Mr. McLauchlan and Mr. Puffett were opposed to the course which Mr. Brinsden at first proposed and prevailed upon him to soften that approach, Mr. Bishop was driven to submit (T. 35) that, at least in relation to the giving of the direction for re-training, it was Mr. Brinsden who had the improper motive. That submission is, to say the least, difficult, if not impossible, to reconcile with the attitude of the Appellant on the hearing before the Tribunal which attitude, as I have earlier noted, was (AB 370), that, “(the Appellant made) no complaint of discrimination against Mr. Brinsden, saying only that he was unfair”, and, later, (AB 377) that “(the Appellant’s) view (was) that the Director-General, Mr. Brinsden’s initial decision was free from discrimination against her on the grounds of sex”. Finally, it is to be noted that, as Fitzgerald JA has pointed out in his Judgment, although the subject of challenge on this appeal, the rejection by the Tribunal of Complaints 18, 19, 20 and 21 were not discussed by Simpson J in her reasons for Judgment nor made the subject of detailed argument on the appeal. 65   In the event, as it seems to me, the fate of this case depends on one point and one point alone: whether the Tribunal erred in law because, as it is submitted, it did not deal in an adequate way with matters relevant to its ultimate determination. 66   Although there is no general rule of the common law, or principle or natural justice, that requires reasons to be given for administrative decisions (see, for example, Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, 662 per Gibbs CJ), it seems to be accepted that, at least in relation to administrative tribunals which, by the statutes creating them, are required to give reasons for their decisions, it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process. However, as Mahoney JA (as he then was) said in Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, 273:

“There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adopt the formula used in a different part of the law: see R. v. Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.
To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the judicial process.”

67   It should, however, be noted that an error of law in giving no, or in giving inadequate, reasons for judgment differs from an error of law in coming to a verdict or decision, for the latter directly vitiates the verdict or decision, either, in the sense that the verdict or decision thereby is legally wrong and reversible, or, in the sense that the verdict or decision is based on an error in the legal process so that a new trial is attracted. A failure to give any, or any adequate, reasons does not, without more, establish that the verdict or decision involved some error although there may be cases - of which it is submitted here that the present is one - which warrant the inference that the relevant Tribunal has failed in some respect to exercise its powers according to law (see, for example, Repatriation Commission v. O’Brien (1984-1985) 155 CLR 422, 445-446 per Brennan J (as he then was)). 68 As the decision of the Tribunal extends to some 30 pages, in the course of which the Tribunal dealt to a greater or lesser extent with the material relating to each of the Appellant’s complaints as to discrimination, and dealt, in what might be called a more compendious way, with the various complaints of victimisation, this case at first instance ought to have been, and this appeal should be, dismissed unless it can be said, first, that the reasons given by the Tribunal were inadequate, and, second, that that inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law. 69 While acknowledging Fitzgerald JA’s view that the Tribunal’s reasons were, at least in some respects, inadequate, I am unable to share that view. 70 At the outset, it is to be recalled that, of the 21 complaints brought by the Appellant - 13 on the grounds of sex discrimination and 8 on the grounds of victimisation - 11 - 8 on the grounds of sex discrimination and 3 on the grounds of victimisation - of those which were rejected by the Tribunal have not been made the subject of challenge. 71 In the course of his Judgment, Fitzgerald JA has referred to the criticisms made by Simpson J in her Judgment in relation to the reasons given by the Tribunal concerning Complaints 6/7 and 8/9 and expressed the view - which I share - that the reasons given by the Tribunal for dismissing those complaints were not inadequate. 72 It is in relation to the Tribunal’s reasons for dismissing Complaint 11 that I first diverge from the views expressed by Fitzgerald JA in his Judgment. That complaint, it is to be recalled, related to what was alleged to have been the decision by Mr. Brinsden requiring the Appellant to undertake retraining without having first given her an opportunity to read and to comment on the report of the Management Support Team. In relation to that complaint - and also in relation to Complaint 19 - which he described as closely related to Complaint 9 - and in relation to Complaint 21, Fitzgerald JA in the course of his Judgment has referred to a number of matters which, so he seems to suggest, ought to have been considered by the Tribunal in default of which the Tribunal is to be regarded as having given inadequate reasons for its decision. 73 While, if there had been nothing else, I might have been disposed to the view which his Honour apparently favours, there is more to which regard must be had. As is apparent from what I have written above, the relevant decision was that of Mr. Brinsden and not that of either Mr. McLauchlan or Mr. Puffett and, as I have previously noted, the Tribunal recorded in its reasons that “(The Appellant made) no complaint of discrimination against Mr. Brinsden, saying only that he was unfair”, a similar observation being made by the Tribunal when dealing with Complaint No. 20. Further, when dealing with the related complaints of victimisation, the Tribunal recorded (AB 380):

“The Tribunal believes that the senior officers of the Respondent were aware that the (Appellant) was pursuing a wide agenda of complaints. It is the view of the Tribunal that other factors had far more influence on the relevant decision of the Respondent. The decision to send in the Management Support Team was taken in order to find out what was wrong; it was not, in the view of the Tribunal, taken to punish the (Appellant) because she had had the temerity to go to the Anti-Discrimination Board (Complaint 7). Nor, indeed, were the procedures utilised by the Management Support Team the result of a similar punitive policy (Complaint 9) or the failure to give to the (Appellant) the matters adverse to her in the Management Support Team report for her to comment on (Complaint 11).
The (Appellant) also argued that the failure of the Respondent to advertise the secondment, as required by the Respondents own published procedures, occurred because of this intent to punish her or block her progress (Complaint 13). The Tribunal was provided with no evidence which, in its view, established that argument. There was no evidence that TAFE’s actions, complained of in Complaints 17, 19 and 21, were to victimise the (Appellant).
Accordingly, the Tribunal is of the view that the (Appellant) has failed to substantiate her complaints of victimisation based on the allegation that the Respondent acted in a certain way to her detriment because of its knowledge that she had brought proceedings against the Respondent under the Act.”

74   Further, when dealing with so much of the Appellant’s complaints of victimisation because of her alleged support of Dr. Badve, the Tribunal recorded (AB 381):

“Accordingly, the Tribunal was not satisfied that the (Appellant) has proven that she has suffered detriment because the Respondent or its officers new that she had given evidence or information in connection with the proceedings against the Respondent or any other person brought by Dr. Badve under the Act.
In particular, the Tribunal was not convinced that the alleged support of Dr. Badve by the (Appellant) in any way influenced the decisions to appoint the Management Support Team, the procedures employed by it, the order seconding the (Appellant) to the Management Attachment Scheme without having her comment thereon or advertising at first, or the continuation of that secondment, as alleged in Complaints 7, 9, 11 and 13; nor did it affect the considerations of the Respondent as to the effect of such steps on the health of the (Appellant) as alleged in Complaint 17 or as to the alternative ways of dealing with the problems which were identified at the Strathfield College, as alleged in Complaint 19.
Finally, the Tribunal can see no grounds for accepting that the continuation of the secondment for a short period, as alleged in Complaint 21, was in any way related to her support for Dr. Badve.”

75   It is appropriate to add, here, a comment as to Complaint 19 - which complaint was that “by requiring the (Appellant) to undertake retraining for a period of 12 months without implementing other alternatives for redressing the problems that were the subject of the Management Support Team Report, and at the same time allowing the Registrar, Charles Gleeson, to transfer at his request to another College without loss of any rank, prestige or any entitlements” the Respondent had unlawfully victimised, the Appellant. 76   It should be noted, first, that, even before Mr. Purcell was seconded to the College, Mr. Gleeson had recognised that his qualifications and experience were inadequate to fit him for the position of Registrar of the College and had sought that he be transferred to work with a Senior Registrar as an Assistant Registrar; second, that, at about the same time, the Appellant was seeking to have the position of Registrar of the College substantially upgraded, and at the same time, to have the Registrar transferred; and third, that, in the course of its report the Management Support Team recorded (inter alia):

“The success of effective team management between the Principal and Registrar has been varied. The majority of people interviewed expressed negative comments relative to team management relations, present and past. The present Registrar and Principal ceased harmonious working relationships in approx April/May 1989. Both stated this fact.”
and later:

“Of major concern to the operations of the College is the lack of effective team management practices particularly involving the Principal and Registrar. Their leadership roles have been widely criticised by staff, their management roles are causing conflict and the status of the College Registrar as a member of the College executive has been eroded. The present Registrar’s inability to make decisions or guarantee action concerned the support team. Collectively this had led to industrial unrest and low morale within the College. The Principal is at her ‘wits end’ and the Registrar is suffering ill health and not coping with the situation. The lack of effective communication and information flow affecting the operations of all sections, the difficulty in accessing the Principal and Registrar and poor record management practices have contributed to the ineffective management practices and operations of the College.
The end result is a situation which could only be described as crisis management.”

77   In this regard, it should be noted that, in its Reasons (AB 375-376) the Tribunal recorded:

“The (Appellant) raised for the first time in submissions that she should have been encouraged to transfer. In reply the Respondent submitted:
‘At no time had it ever been argued that this was something Mrs. Absolon would have embraced. Indeed, all the evidence would suggest that there would be as little chance of Mrs. Absolon agreeing to a transfer as there was of having her become part of the Management Attachment Scheme.’
By being attached to the Management Attachment Scheme the (Appellant) did not lose any salary or entitlements while Mr. Gleeson was transferred.
The (Appellant) sought to demonstrate the different attitudes by comparison with the treatment of Mr. Gleeson, the former Registrar of the Strathfield College. However, there were major differences between the two people and their positions which, in the opinion of the Tribunal diminished the value of such a comparison.
The (Appellant) was a senior officer employed by the Respondent. Indeed, she was, in her opinion ready and qualified to be appointed as a Grade II Principal. The Registrar was a junior employee. It was his inexperience that was claimed by the (Appellant) to be the cause of the problems at Strathfield. The Tribunal believes that it was open to the Respondent to reasonably allocate different responsibilities for the problems at Strathfield and arrive at different decisions in respect of the value and future of the individuals concerned.
In any case the Tribunal regarded the decisions reached by the Respondent as to where to place the Registrar and Principal to be administrative matters which, if untainted by any discrimination based on sex, were not matters to be dealt with by this Tribunal.”

78   In my view, the Tribunal did not fail to give adequate reasons for dismissing Complaint 21. 79   In his Judgment, Fitzgerald JA, having indicated his view that the Appellant had failed to make out her attacks on the Tribunal’s Reasons in relation to Complaints 6 to 9, continues:

“Complaints 10, 11, 18, 19, 20 and 21 related to the Commission’s conduct towards the appellant after it received the MST report. Unfortunately, complaints 18, 29, 20 and 21 were neither discussed in the reasons of the primary judge nor made the subject of detailed argument in this Court. All six complaints are broadly related to similar matters, and I have identified no sufficient reason why the result in relation to complaints 18 and 20 should be different from the result in respect of complaint 10, or the result in relation to complaints 19 and 21 should be different from the result in relation to complaint 11 . ”

80   Having then recorded his view that the Appellant’s attacks on the Tribunal’s Reasons for dismissing Complaints 10, 18 and 20 failed, Fitzgerald JA continues: -

“The appellant’s remaining complaints 11, 19 and 21 concerned the Commission’s failure to:
(i) put matters adverse to her in the MST report for her comment prior to ordering her to undertake retraining for a period of twelve months;
(ii) implement other alternatives for readdressing the problems that were the subject of the MST report; and
(iii) withdraw the order requiring her to undertake retraining (as soon as it reached conclusion that there was no specific finding against her in the MST report).
Those omissions by the Commission were alleged to be attributable to the appellant’s earlier complaint to the Board.”

81   Then, having considered the Tribunal’s Reasons in relation to those complaints, Fitzgerald JA concludes:

“For the reasons which I have given, I am satisfied that the Tribunal was obliged:
(a) to consider collectively the matters referred to (above) together with such other considerations as it legitimately considered relevant, in determining whether or not the appellant had been victimised as she alleged in complaints 11, 19, and 21; and
(b) in its reasons, to explain how it reached its determination adverse to the appellant notwithstanding those matters.
It follows that I am of opinion that the Tribunal erred in law in dismissing those complaints without considering and discussing those matters. The Tribunal’s failure to give effect to the Commission’s failure to adduce evidence from Mr. Brinsden was of particular significance. I am further of opinion that it cannot be concluded that, had the Tribunal properly performed its task, it would have reached conclusions adverse to the appellant in respect of those complaints. The consequence is, in some respects unappealing. Whether through her own fault or the fault of her advisers, the appellant has misused the beneficial policies of the Anti-Discrimination Act and considerable time and money has been wasted.
However, I consider that the appeal should succeed with respect to complaints 11, 19 and 21. The appeal should be dismissed in relation to the other complaints. The judgment below should be set aside in so far as it relates to complaints 11, 19 and 21, which should be remitted to the Equal Opportunity Tribunal for rehearing before a differently constituted Tribunal.”

82   As will be apparent from what I have written above, it is my view that it is not appropriate for Complaints 11 and 19 to be remitted to be re-heard. 83   Nor, in my view, should Complaint 21 be re-heard. That complaint alleges that “the Respondent, having called for a response by the (Appellant) to the report of the Management Support Team, and having reached a conclusion as a result of that report that there was no specific finding against the (Appellant), refused to withdraw the order that the (Appellant) undertake retraining” and thereby unlawfully victimised the Appellant. In this regard it is, in my view, sufficient to record, once more, what the Tribunal wrote in its Reasons in relation to Complaint 20 to which Complaint 21 was joined. It was as follows (AB 376):

“Nothing in the (Appellant’s) written response to the Management Support Team Report led the Tribunal to the view that the MST has misinterpreted the situation at Strathfield.
The (Appellant) had an interview with Mr. Brinsden on 15 March, 1990. As noted in Complaint 10, Mr. Brinsden was not called by either side. The (Appellant) produced her notes of her interview with Mr. Brinsden. At the meeting Mr. Brinsden said he had read the report and would not change his mind. He indicated the areas of concern to him were:
Accountability
Inability to motivate people
Target setting
Planning
The Tribunal heard lengthy evidence from the Relief Principal, Mr. Webster, and he gave evidence of a number of administrative shortcomings at the College. Mr. Webster, the replacement Principal, and Mr. Reardon, the Registrar who wrote the MST Report, both gave convincing evidence that the Principal’s response failed to refute the MST Report.
The (Appellant) alleged that there was no specific finding against her. The evidence of Mr. Webster and Mr. Reardon and notes of interview with Mr. Brinsden indicated there were a number of administrative areas that needed attention. During the hearing the (Appellant) did show the assertion that cheques had been dishonoured was not true but she was unable to rebut the Respondent’s numerous other concerns about the management of Strathfield College.
The Tribunal notes the (Appellant’s) view that the Director-General, Mr. Brinsden’s initial decision was free from discrimination against her on the grounds of sex. Mr. Puffett and other senior officers who acted to reduce progressively the initial decision of the Director-General, from a penalty of dismissal first to 12 months retraining then to 3 months retraining must also be free of the same criticism.”

84   But even if my view that the reasons given by the Tribunal in relation to Complaints 11, 19 and 21 are adequate be in error, that fact, in my view, would not warrant an inference that, in coming to its conclusion to dismiss those complaints, the Tribunal failed to exercise its jurisdiction accordingly to law. 85   In its Reasons, the Tribunal having recorded some introductory material as to the manner in which the complaints came to be referred to it by the President of the Board, as to the complaints themselves, as to the length of the hearing before it and as to the orders sought, continued (AB 358):

“STANDARD OF PROOF
The Tribunal noted and accepted the submission by the (Appellant) that the standard of proof applicable in proceedings such as these is not that required for proof in criminal proceedings but is rather that of the balance of probabilities - whether, given the factual evidence, it was more probable than not that discrimination occurred. However, ‘it is necessary to prove that the Respondent took into account - expressly or implicitly, consciously or subconsciously - the (Appellant’s) sex when making a decision adverse to that person; and that the (Appellant’s) sex constituted a significant reason for the adverse decision.’ Also, ‘the Tribunal may ultimately be able to draw the inference of unlawful discrimination and if no evidence or no acceptable evidence is present to rebut that inference’. These views expressed in the (Appellant’s) written submissions of 6 July 1994 p.6 were not challenged by the Respondent.
The (Appellant’s) written submissions also acknowledged that the burden of proof rests on her.”

86   There is, in my view, nothing in the Tribunal’s reasons to suggest that, in coming to the various decisions which it did, the Tribunal failed to proceed in accordance with the manner in which it instructed itself. 87   In my opinion the appeal should be dismissed with costs. 88   FITZGERALD JA: This appeal from a judge in the Administrative Law Division is based on the sole ground that her Honour erred in law in dismissing an appeal from the Equal Opportunity Tribunal (the “Tribunal”). The appellant seeks an order that the proceedings be remitted to the Tribunal “… for a rehearing before a differently constituted Tribunal”. I did not understand the respondent New South Wales Technical and Further Education Commission (the “Commission”) to argue that there is any basis for the refusal of the order sought by the appellant if the Tribunal made a legal error as she alleges. The appellant is not disqualified from relief to which she would otherwise be entitled because, according to the Tribunal, she “has been a persistent complainer”. 89 The appellant’s case before the Tribunal ranged far and wide, and included irrelevant issues and issues of marginal relevance. Evidence was adduced on a broad array of grievances, and testimony and oral submissions occupied 32 hearing days. The large amount of material before the Tribunal also included over 144 exhibits and 400 pages of written submissions. The unsatisfactory position which has now developed stems, at least in part, from the variety and superficial complexity of the appellant’s allegations, and the internal tensions in her case. It is more than nine years since the last of the events which produced the appellant’s complaints which led to the Tribunal hearing, and almost four years since the Tribunal gave its decision. The manner in which the appellant’s case was presented to this Court has also led to delay in production of the Court’s judgment. 90 The error of law attributed to the primary judge by the appellant’s notice of appeal is that her Honour dismissed the appeal from the Tribunal after “… having found that the reasons given by the … Tribunal for its decisions were inadequate for the purposes for which they were required …”. The Tribunal was required to give reasons for its decision by s117 of the Anti-Discrimination Act 1977. The Commission argued that, when regard is had to her Honour’s full reasons for dismissing the appeal, she made no error of law. After stating that the question was “whether the tribunal’s reasons, deficient as I consider them to be, are so deficient as to meet the tests … expressed” for reasons to be legally sufficient, her Honour’s ultimate conclusion was that:

“… without some real reason to anticipate the possibility of a different result, I do not think the inadequacy of the reasons should invalidate the decision.”

91   Before the primary judge, the appellant’s argument vacillated between submissions concerning the adequacy of the Tribunal’s reasons as a sufficient performance of its quasi-judicial function of explaining its decision and submissions that the Tribunal erred in law in failing “… to take account of relevant considerations in the decision making process”, to quote from her Honour’s reasons. There was a similar ambivalence in the appellant’s submissions to the Court. On either view, the appellant must demonstrate that issues which it was necessary for the Tribunal to consider are not referred to in its reasons for its decision. Her task is especially difficult because there are no defined issues against which the Tribunal’s reasons can be tested, there is no defect manifest on the face of the Tribunal’s reasoning process, Cf Cypressvale Pty Ltd v Retail Shop Lease Tribunal (1996) 2 QdR 462. and it was unnecessary for the Tribunal to follow the appellant along every track and up every gully where she chose to venture. Cf Mifsud v Campbell 91991) 21 NSWLR 725; Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242; Haines v Leves (1987) 8 NSWLR 442. 92 The appellant was a Principal Grade III at the Strathfield College of Technical and Further Education (“TAFE”), when the Commission appointed a Management Support Team (“MST”) to investigate the management and administrative practices and administrative systems and procedures of the college in mid-1989. 93 The MST was appointed consequent upon a recommendation by senior officers of the Commission, Mr Puffet, Mr Michael Ryan, the Administrative Officer (Colleges and Schools), TAFE, with whom the appellant was in conflict, and Mr James McLauchlan, the Assistant Director-General (Administration), TAFE, who, the appellant asserted, was inappropriately influenced by Mr Ryan. The MST reported to the Commission on 29 August 1989. On 6 September 1989, the appellant was directed to undertake retraining for a period of 12 months on the decision of the Director-General, TAFE, Mr Michael Brinsden. The period of retraining was reduced to 3 months on 15 March 1990, after Mr Brinsden considered a submission by the appellant. 94 The appellant was not provided with a copy of the MST report, or given an opportunity to comment upon matters adverse to her in the report, argue against a direction that she undertake retraining or contend that some other course was more appropriate, prior to the direction that she undertake retraining. Contrary to established procedures, Mr Brinsden made a deliberate decision to withhold the report from the appellant until she had been notified of the direction that she undertake retraining. He considered that the appellant should be dismissed or at least subjected to disciplinary proceedings, but was dissuaded from doing so by Mr McLauchlan and Mr Puffet. 95 Although the appellant nominally retained her position as Principal of Strathfield College and her salary and entitlements, the direction that she undertake retraining was extremely humiliating, and a significant obstacle in her career path. No other person in a comparable position had ever been subjected to such a requirement. 96 On 9 September 1989, the appellant lodged a number of complaints against the Commission with the Anti-Discrimination Board of New South Wales (the “Board”) and, according to her evidence, suffered a nervous breakdown at about the same time. Additional complaints were later made by the appellant to the Board, which referred 21 of the appellant’s 26 complaints to the Tribunal. 97 The Tribunal dismissed all of the appellant’s 26 complaints, and she appealed to the Administrative Law Division in respect of 10 complaints, those numbered 6 to 11 and 18 to 21. 98 Those 10 complaints, which are also the subject of the appeal to this Court, related to 5 acts of the Commission, each of which was alleged to have been engaged in by the Commission for two proscribed reasons; namely, because the appellant is a woman Involving discrimination contrary to ss24 & 25 of the Anti-Discrimination Act. (complaints 6, 8, 10, 18 and 20), and because she had made a complaint against the Commission to the Board in April 1989 Involving victimisation contrary to s50 of that Act. (complaints 7, 9, 11, 19 and 21). 99 The five matters of complaint were summarised in the appellant’s “Written Submissions: Facts” as follows:

“(a) Complaints 6 and 7 refer to the [Commission’s] failure to consult the appellant before appointing an MST …;
(b) Complaints 8 and 9 refer to the improper, unfair, prejudicial and discriminatory procedures employed by the MST in its investigation of the College;
(c) Complaints 10 and 11 refer to the [Commission’s] failure to put the matters adverse to the appellant in the MST report for her comment prior to ordering her to undertake re-training for a period of twelve months;
(d) Complaints 18 and 19 refer to the failure by the [Commission] to implement other alternatives for readdressing the problems that were the subject of the MST report, whilst at the same time it permitted the Registrar of the College, Charles Gleeson, to transfer at his own request, and without loss of any rank, prestige or entitlements, to another college;
(e) Complaints 20 and 21 refer to the failure by the [Commission], having reached a conclusion that there was no specific finding against the appellant in the MST report, to withdraw the order requiring the appellant to undertake retraining.”

100   Obviously, it was insufficient for the appellant to establish those alleged failures and deficiencies by the Commission in order to succeed before the Tribunal. It was also necessary for her to establish that the reason for what occurred was that she is a woman or that she had earlier complained against the Commission to the Board. 101   The primary judge noted that the appellant’s case before her was that “… the absence of reference to important areas of factual contest, and the absence of any analysis of the competing arguments as to evidence that should or should not be accepted, and inferences that should or should not be drawn from accepted evidence, point to failure to the Tribunal to make its decision according to law…”. Similarly, the appellant’s case before this Court, as stated in her written submissions, was that the Tribunal failed to examine carefully “a wide range of statements, circumstances and matters as evidence of the … unlawful discrimination and victimisation” which the appellant alleged against the Commission. These alleged failures by the Tribunal were summarised as follows:

“First, a large number of relevant issues were not discussed at all. Second, when the relevant issue was discussed, frequently the evidence of statements, circumstances and matters that were in favour of the appellants was simply omitted. Third, the evidence that was omitted so frequently was essential to the appellant’s case.”

The appellant submitted that “the ultimate result was that her ‘case’ … was not considered” by the Tribunal.

102   The appellant’s “Written Submissions: Facts” submitted that the Tribunal failed to refer to evidence of the following matters:

(i) “… there was entrenched opposition to the employment of women as managers by the [Commission] …”
(ii) Michael Ryan … had a longstanding personal animosity towards the appellant, and a highly critical view of her performance as an administrator… Mr Ryan used his position as Administrative Officer (Colleges and Schools), and … his close working relationship with Mr McLauchlan, to influence Mr McLauchlan against the appellant.”
(iii) “… matters that would suggest that the establishment of the MST was decidedly unreasonable …”
(iv) “…a comparison between the establishment of, and procedures followed by, the MST at Strathfield College, and the establishment of, and the procedures followed by, MST's in other colleges… the [Commission] had departed in several significant ways from the usual procedures, as set out in the control document that governed the establishment of and procedures followed by MST's…
(v) “… a litany of witnesses ascribed the problems at the College peculiarly to the incompetence of the Registrar …”. (The appellant pointed out that the Commission did not “…lead evidence as to why Mr Gleeson was not called as a witness …”).
(vi) “Charles Gleeson … was treated differently to her in that he was allowed to transfer at his own request to another college, whereas she was ordered to undertake re-training for a period of twelve months.” (The appellant stated that the Tribunal held “…that the reasons for the differential treatment were found in the different seniority in the positions held, respectively, by Mr Gleeson and the appellant …”, and “…went on to say that this was a mere administrative matter and provided no evidence of discrimination …”. (The appellant’s submission was that “…the differential treatment had to be considered in conjunction with other matters in order for the [Tribunal] to determine whether or not the behaviour of the [Commission] was tainted by discrimination or victimisation…”).
(vii) “An audit was conducted at Strathfield College every two years. The [Tribunal] treated the issues raised by the 1987 Audit - that is to say, those that pertain to the appellant's stewardship as Principal - as serious … whereas the evidence showed that they were clearly not …. More significantly, the [Tribunal] omitted completely any reference to the very poor audits in 1983 and 1985 that related to the stewardship of male principals. … Moreover, the audit of 1985 was withdrawn so that the Principal during the relevant period covered by the audit could be promoted . The withdrawal of an audit was unique in the history of TAFE …”
(viii) “John White [the] Deputy Director-General of TAFE in February 1989 … was the source of evidence that there was unusual animosity displayed at that time by senior TAFE officers towards the appellant”.
(ix) “… a complaint that she made to the … Board in April 1989, and a number of threatening letters indicating that she intended to do so … [were] considered by [Tribunal] as a discrete entity and not in conjunction with other relevant matters…”.
(x) “Judith Blayden was a consultant hired by the [Commission] to write an independent report on the issues raised by the order given to the appellant to undertake re-training, and her subsequent nervous breakdown. There is much in her report that is supportive of the appellant's case … there was no attempt by the [Commission] to challenge its accuracy …”
(xi) “… TAFE procedures required that such re-training was to be part of staff development. John White said that it could not be so described, and that, rather, it was punitive … Further, … in the history of TAFE there had not been one other instance where a Principal had been ordered to undertake re-training …
(xii) “Michael Brinsden … the Director General on 6 September, 1989 … in issuing this order … did not follow normal TAFE procedures …”. (The appellant pointed out that “…Mr Brinsden was not called by the [Commission] to give evidence, and no evidence was led as to why he was not present …”).
(xiii) “Colin Gellatly succeeded Michael Brinsden as Director-General in 1990. He assumed this role at a time when the appellant's case was a very live issue. … statements made by Dr Gellatly … supported the appellant's case. …” (The appellant submitted that “… the accuracy of his evidence was not challenged by the [Commission] and … the [Commission] … failed to explain why Dr Gellatly was not called to give evidence”).
(xiv) “…the actions of the [Commission] caused her to suffer a nervous breakdown … (The appellant submitted that the Commission failed to “…call evidence to challenge the appellant's case on this issue”, which she described as “central” to her case).

103   The latter assertion provides a clear example of the confusion involved in the appellant’s case. Plainly, the fact that she suffered a nervous breakdown, if that regrettably occurred, could not assist in determining whether the appellant had made good all or any of her allegations against the Commission. Similarly, a personal antagonism towards her by Mr Ryan, if established, could only be material if that antagonism was based on the fact that the appellant is a woman and/or on her earlier complaint to the Board, which was not the appellant’s case. Indeed, proof that Mr Ryan, and through him Mr McLauchlan, were personally antagonistic to the appellant could detract from her allegations of discrimination by the Commission because she was a woman and victimisation by the Commission because of her earlier complaint to the Board. Again, it was of no consequence if, before the Tribunal, “… a litany of witnesses ascribed the problems at the college peculiarly to the incompetence of the Registrar”, at least in the absence of proof that that information was available to the Commission at the time it directed the appellant to undergo retraining for a period of 12 months. Reference will later be made to the MST’s conclusions with respect to the Registrar. The proceeding before the Tribunal was not an administrative review of the overall merits of the Commission’s decision but a consideration of whether the Commission had discriminated against or victimised the appellant. 104   A further written “Submissions of Facts”, which was handed up in the course of the appellant’s oral argument to this Court, contained the following statement of the “relevant issues” by way of repetition and/or elaboration of points (i) to (xiv) in para 15 above.

“(a) There was entrenched opposition to women as managers in TAFE during the 1980s…. The culture oppressive to women within TAFE at the relevant time was a highly relevant matter. The Tribunal made no reference to this.
(b) The MST was a concept within TAFE in which a Principal and a Registrar of standing would work through identified problems with the relevant Principal and Registrar in a college. It was not an inspection … the Tribunal made no reference to the special nature of the MST.
(c) The MST at Strathfield at its inception moved outside the concept of the MST. It was simply to “assess and make recommendations”: … At Murwillumbah College of TAFE the MST was asked simply to provide “support and advice”:… There was no reference by the Tribunal to this.
(d) The procedures followed by the MST’s in the two colleges were markedly different. The general approach of the MST at Strathfield was “assessment” … At Murwillumbah there was an attempt to solve problems during the course of the team’s visit … The Tribunal made no reference to this.
(e) A comparison was made by the MST at Strathfield of Baulkham Hills College of TAFE where there was a male principal: … The investigation took half an hour; it was perfunctory; it made no check of college facilities or office systems; and it was admitted by a member of the MST to be “inadequate” … There was no reference to this by the Tribunal.
(f) The MST control document provided for a “round-table discussion” at the conclusion of the MST’s visits … This was implemented strictly at Murwillumbah … the results of the Murwillumbah investigation displayed very serious problems in the management of the college … This notwithstanding, the normal procedures were followed. The relevant comparison was not made by the Tribunal.
(g) Brinsden had moved completely outside the TAFE procedures in issuing an order to undertake re-training without providing a copy of the report to the appellant first, and against the advice of his senior officers … Yet Mr Brinsden was not called by the [Commission]. The point was pressed by the appellant in her submissions to the Tribunal … but the Tribunal said that either party could call Brinsden.
(h) The Principal at Murwillumbah College was encouraged to accept “short term secondment” … The appellant was ordered to undertake re-training … the order was unique in the history of the TAFE … The Tribunal made no reference to this.
(i) John White, Deputy Director General until the early months of 1989, said that the order was disciplinary, and not staff development … the Tribunal made no reference to this.”

105   The Commission did not dispute that there was evidence of each of the factual allegations made by the appellant. 106   The primary judge discussed the Tribunal’s reasons for dismissing the appellant’s complaints 6 to 11 as examples of the approach which had been followed by the Tribunal. 107   Complaints 6 and 7 were both founded on the allegation that the Commission sent the MST to the appellant’s college “without any matters on which [the] decision was based first being put the [appellant] for comment …”. Complaint 6 further alleged that the Commission “… thereby unlawfully discriminated against the complainant on the grounds of her sex …”. Plainly, something more was needed to provide a logical connection between those two allegations. According to complaint 7, the reason why the Commission sent the MST to the appellant’s college without any matters on which the decision was based first being put to her for comment was that “…the [appellant] [had] made a complaint of discrimination to the … Board against the [Commission] in April 1989 …”. That allegation provided the basis for the further allegation that “… the [Commission] thereby unlawfully victimised the [appellant] …”. 108   The primary judge was critical of the Tribunal’s reasons for its decision to dismiss complaint number 6, but I have some difficulty in following why that was so. Personal allegations against Mr Ryan, and a friend of his, Mr Brendan O’Reilly, failed because the Tribunal was not satisfied that events alleged by the appellant had occurred. Those events formed part of her allegations that her sex had entered into the Commission’s decision and conduct. She also raised the circumstances in which an MST had been appointed to another TAFE college at Murwillumbah which had a male principal, arguing that there were markedly stronger and more compelling reasons for appointing an MST at the Murwillumbah college than at the appellant’s Strathfield college. Assuming that to be so, it provides no rational basis for an inference that the circumstances did not justify the appointment of an MST to the appellant’s college, or that, whether or not they did so, the appointment was made because the appellant is a woman. Equally clearly, there is no rational basis in those circumstances for an inference that the MST was sent to the appellant’s college without prior discussion with her because she is a woman. 109   The primary judge said that there “… was a considerable issue about whether the circumstances at Strathfield justified such drastic action” as the appointment of an MST, there being “… little dispute that a principal to whose college an MST was sent would lose standing in the department generally, and would suffer in promotion prospects”. However, whether or not the decision to appoint an MST to the appellant’s college was justified was irrelevant to complaint 6 unless the decision was influenced by the appellant’s sex. It is not clear that the primary judge constantly bore in mind that issues raised by the appellant were not material unless they were referable to circumstances of discrimination or victimisation specified by the Anti-Discrimination Act. 110   Later, her Honour said:

“It was not, of course, necessary for the Tribunal to dot every “ ‘i’ ” and cross every “ ‘t’ ” that emerged from [the parties’] lengthy submissions. The fact such comprehensive submissions were made to some extent relieved the Tribunal of the obligation to delve deeply into the vast amount of evidentiary material that had been produced. What the Tribunal did was to deal with the two complaints [6 and 7] separately, under the headings of ‘discrimination’ and ‘victimisation’. Its decision with respect to the complaint numbered 6 commenced with a recital of the evidence of circumstances which preceded the [Commission’s] decision. Although it did not expressly say so, it is a reasonable inference that the Tribunal accepted these facts, particularly as they do not appear to have been the subject of significant contest.

It is not the recitation of factual material that is of present concern.”

111 Her Honour then went on to set out a passage from the Tribunal’s decision in which it stated that it “… was not satisfied that there was any evidence before it which demonstrated that [the] administrative procedures [adopted by the Commission] [if they were improper] were applied for reasons proscribed by the Act. The Tribunal was unable to make that link”. Her Honour criticised the Tribunal’s approach in the following passage:

“What the Tribunal did not do was concern itself with the question whether the [Commission’s] decision … was shown to have been a discriminatory one, for all or any of the reasons advanced on the [appellant’s] behalf. To assist it to make that evaluation, it had before it the evidence to which I have referred of discriminatory attitudes and practices within the [Commission], which, [if the Tribunal accepted their existence] may have put the [Commission’s] decision in a different, and clearer, light. Of course it is not necessarily the case that the Tribunal would have accepted this evidence, or accepted that it provided the explanation for the [Commission’s] behaviour; it was very desirable, however, that the Tribunal’s reasons for its decision exposed its understanding of the way the [appellant] put her case, in all its conceptual and factual complexities, and exposed its path of reasoning for its ultimate conclusion. This, in my view, did not happen.”

112   It is not possible to identify in her Honour’s reasons for judgment the evidence to which she said she had referred concerning “discriminatory attitudes and practices within the [Commission]….”. Further, the statement that the Tribunal should have exposed “its understanding of the way the [appellant] put her case, in all its conceptual and factual complexities” is too broad. In an era in which the number of unrepresented litigants and the number of Tribunals comprised of, or including, lay members are both increasing, it is important to emphasise that courts and tribunals are not captive to litigants and required to deal with every real or imagined grievance, irrespective of its relevance in the material proceeding. The large sums of public money expended on the legal system are not meant to be squandered by courts and tribunals in indulging some litigants while others queue for justice. 113   The primary judge went on to say that the criticism which she had made of the appellant’s reasons for dismissing complaint 6 might also be made of its dismissal of complaint 7, “alleging that the same course of conduct was attributable to the [appellant’s] earlier complaint to the [Board]”. Her Honour later stated:

“The Tribunal dealt with all of the complaints of victimisation together. It set out what was effectively a history of criticisms of the [Commissions] that had been made by the [appellant]. These were not limited to complaints of discrimination lodged with the [Board]. The Tribunal, having listed these criticisms by the [appellant], dubbed her ‘certainly a persistent complainer’. It rejected certain assertions of fact made by her by which she sought to have the Tribunal draw an inference of victimisation….The Tribunal viewed the action of the [appellant] in complaining to the [Board] as merely one event in saga of complaints and criticisms by the [appellant], of which senior officers were aware, but which had no apparently greater significance than the variety of other avenues of which the [appellant] had availed herself in what the Tribunal clearly saw as her campaign against the administration. It therefore formed the view that factors other than the [appellant’s] complaints to the [Board] were more influential on its decision making. Insofar as it dealt specifically with the complaint number 7 it held:

‘The decision to send in the Management Support Team was taken in order to find out what was wrong; it was not … taken to punish the [appellant] because she had had the temerity to go to the … Board.’

It therefore rejected that complaint together with other complaints of victimisation.”

114   After referring to statements by the Tribunal as findings of fact which contained some errors of no significance, the primary judge said:

“But other matters of which complaint is made are of more substance. In the [appellant’s] submission there is a litany of evidentiary material to which no reference was made by the Tribunal”.

115   Her Honour did not identify that material or indicate that she accepted the appellant’s submission. At the least, it was a prerequisite of any obligation on the Tribunal to discuss and analyse evidence that that evidence was capable of supporting an inference material to the provisions of the Anti-Discrimination Act upon which the appellant relied. 116   The primary judge also made reference to complaints 8 and 9, which alleged that “improper, unfair, prejudicial and discriminatory” procedures were adopted by the MST during its operation at Strathfield College for the same prohibited reasons as had been alleged in complaints 6 and 7, namely, because the appellant is a woman (complaint 8) and because of her earlier complaint against the Commission to the Board (complaint 9). 117   Once again, as analysed by the primary judge, the appellant’s case was essentially based on a contrast between the procedures adopted by the MST at the appellant’s college at Strathfield, those adopted by another MST at the college at Murwillumbah, and also those adopted by another MST at another TAFE college at Baulkham Hills. 118   While accepting that, after consideration of the evidence and competing arguments, the Tribunal might well have come to the view either that the procedures at Strathfield were not “improper, unfair, prejudicial and discriminatory” or that, even if the procedures had been shown somehow to be wanting, that was not shown to have been because of a prohibited reason, her Honour said:

“It was … obligatory for the Tribunal to decide whether the procedures so employed [at the appellant’s Strathfield college] could properly be characterised by any of the descriptions assigned by the [appellant], or, more accurately, whether, however described, they constituted treatment less favourable than would, in the same or not materially different circumstances, have been accorded to an actual or hypothetical comparable male. That enquiry clearly demanded an evaluation of the procedures themselves, not from the point of view of business efficacy (although that may have shed some light upon their proper characterisation, and permitted relevant inferences to be drawn) but in the overall context of the [appellant’s] working conditions by reference, as always, to the comparable male. If the procedures were indicative of less favourable treatment, then it was incumbent upon the Tribunal to enquire further as to what motivation underlay the less favourable treatment.”

119   I am not persuaded that that was the only legitimate process of reasoning available to the Tribunal. 120   Her Honour later set out in full what the Tribunal said about complaint 8. In summary, the Tribunal held that the MST was at the appellant’s college because senior officers of the Commission had reason to believe that there were problems at the college, and that the MST had observed a proper mix of procedural fairness and professional competence in its activities. Her Honour noted that the Tribunal continued:

“The Tribunal was not presented with any evidence which, in its opinion, indicated that the procedures of the Management Support Team were improper, unfair, prejudicial or discriminatory in terms of the Act.”

121   Her Honour then also noted that the Tribunal added in relation to complaint 9 that the procedures utilised by the MST were not “…. the result of a similar punitive policy…”; i.e., were not related to the appellant’s earlier complaint against the Commission to the Board. 122   The other complaints specifically discussed by the primary judge were complaints 10 and 11. Complaint 10 alleged that the reason why the appellant was not given the MST report for comment prior to the Commission’s direction to undertake retraining for a period of twelve months was that she is a woman, and complaint 11 alleged that the reason why the MST report was not given to her for prior comment was her earlier complaint against the Commission to the Board. Once again, a contrast was drawn by the appellant between her treatment and the treatment accorded to the male principal of the college at Murwillumbah. 123   The primary judge said:

“The [appellant] alleged that a decision to order her to undertake retraining was made in breach of established procedures and in breach of the rules of procedural fairness. Neither of those, standing alone, of course, would be sufficient to establish discrimination. However, if the [appellant] were able to establish either of those assertions, that conclusion is something that may have been used by her in an attempt to persuade the Tribunal to draw inferences as to the basis of the decision.”

124   Her Honour went on to set out what the Tribunal had stated. In summary, the Tribunal concluded that the Commission’s omission to call for a response by the appellant to the MST report before directing her to undertake retraining was unfortunate but was motivated by Mr Brinsden’s desire for a quick resolution of the problem. “There was threatened industrial action at the college arising out of the visit of the Management Support Team which the [appellant] was promoting vigorously and the college was in urgent need of administrative assistance”. After noting that a copy of the MST report was provided to the appellant later on the day on which she was directed to undertake retraining, the Tribunal said:

“… any failure by the [Commission] to follow its own rules is of concern to the Tribunal only if it is shown that this departure from its rules is for reasons proscribed by this Act.

No evidence was offered that any of the persons involved in the withholding of this report was discriminating against the [appellant] by reason of her sex. No acceptable evidence was offered that a male principal, in conditions sufficiently similar for a parallel to be drawn, would have been shown a copy of the report where the [appellant] was not …

The failure to show the [appellant] the report immediately (and allow a response prior to the report being considered by management) would not have caused a substantial change in the decision reached and, whilst it was unfortunate, it did not occur as the result of any discrimination based on her sex.” (The underlining was inserted by the Tribunal).

125   As the primary judge noted, the Tribunal summarily disposed of complaint 11 in much the same manner as it had dealt with complaint 9. 126   While this Court cannot go behind the Tribunal’s findings on this appeal, some findings give rise to a suspicion that the Tribunal formed an adverse view of the appellant because she “has been a persistent complainer”. If the vastly more limited proceeding in this Court is any indication, the Tribunal proceeding would have tested the patience and endurance of the Tribunal members beyond all reasonable limits. 127   The findings that the Commission’s omission to call for a response to the MST report from the appellant before directing her to undertake retraining was motivated by Mr Brinsden’s desire for a quick resolution of the problem and that a response by the appellant “would not have caused a substantial change in the decision reached” plainly questionable. Mr Brinsden did not give evidence. The evidence before the Tribunal was strongly against a conclusion that urgency dictated the failure to give the appellant a copy of the MST report before directing her to undertake retraining. More than a week elapsed between the receipt of the MST report by the Commission and its direction that the appellant undertake retraining. Further, the person seconded to the appellant’s position while she underwent retraining, and the principals of the colleges which she was required to attend for that purpose, were notified before the appellant of the direction that she undertake retraining. Moreover, when the appellant’s submission opposing the direction was considered by Mr Brinsden, the period of retraining was reduced from 12 to 3 months. 128   In any event, if Mr Brinsden was motivated by a desire for a quick resolution to the problem the appellant’s response to the MST report “would not have caused a substantial change in the decision reached”, there is an obvious question as to whether the reason why that was so was the appellant’s sex or earlier complaint to the Board. 129   A broader difficulty with the Tribunal’s findings is illustrated by a statement which the Tribunal itself underscored in connection with its dismissal of complaint 10 One of the complaints alleging discrimination by the Commission.; i.e.:

“No acceptable evidence was offered that a male principal, in conditions sufficiently similar for a parallel to be drawn, would have been shown a copy of the [MST] report where the [appellant] was not. ”

The appellant’s case did not depend upon the existence of direct evidence of the kind referred to by the Tribunal, which was, at best, extremely unlikely to be available. Her case depended on an inference being drawn from the combination of the relevant matters which the Tribunal was required to consider.

130   After stating that what she had said was sufficient “…to give a flavour of the approach taken by the Tribunal in respect to individual issues raised”, the primary judge continued:

“… It is necessary, however, to mention some other matters that were raised in the [appellant’s] written submissions to the Tribunal.

In the written submissions filed in the Tribunal on behalf of the [appellant], attention was drawn to the absence of a number of witnesses who might have been expected to have been called by the [Commission]. Some of these appear to be of significance; particular reference was made to the absence of … Mr Michael Brinsden, Director General of TAFE during part of the critical period, up to and including September 1990, and who was the person who ordered the [appellant] to undertake the retraining to which earlier reference has been made; Dr Gellatly, who succeeded Mr Brinsden as Director General and who held that office also during relevant times; Mr Gleeson, the Registrar of the Strathfield College, and whose competence and relationship with the [appellant] were significant issues in the proceedings and individuals who had been staff members at the Strathfield College at relevant times.

Attention was also drawn to the absence of cross-examination on behalf of the [Commission] of several witnesses called on the [appellant’s] behalf.

From all of this, the [appellant] suggested, the Tribunal should draw inferences favourable to her case. In this court she argued that the failure of the Tribunal to make any further reference to these arguments, or these facts, demonstrated that a significant aspect of her case had been overlooked or not understood.

I think there is a good deal of merit in the criticisms made on her behalf of the reasons given by the Tribunal. Large tracts of issues raised for consideration and determination by the parties find no place at all in the reasons given. Matters advanced as having a bearing in the fact finding process are ignored. An initial reading of the decision could reasonably leave the [appellant] uncomfortably with the impression that much of what was put before the Tribunal on her behalf may have been either overlooked or not fully understood. It is therefore necessary to pay careful attention to precisely what is required of a Tribunal in the reason giving process.”

131   Her Honour later said:

“The question then, is whether the Tribunal’s reasons, deficient as I consider them to be, are so deficient as not to meet the tests so expressed. Did the Tribunal, … apprise the parties of the broad outline of constituent facts of the reasoning on which it acted? Did it … articulate the ground or grounds on which the decision was based? Do the reasons enable the parties to see what matters the Tribunal has taken into consideration, and what view it has reached on the points of fact and law which arose? Certainly, what can readily be discerned from the reasons is that the Tribunal was not satisfied either that the [appellant] was treated less favourably than an actual hypothetical comparable male, or that, if she were so treated, it was on a proscribed ground. What is not at all readily discernible is the process which led the Tribunal to those conclusions. Indeed, it is not clear whether it was the first or the second or both elements of which the Tribunal was not satisfied. The “constituent facts” of reasoning on which it acted must have included either rejection of the evidence of a climate of discrimination within TAFE or a finding that, whatever the climate, it did not influence the treatment of the [appellant]. They must have included rejection of the arguments concerning inferences to be drawn from the absence of some apparently material witnesses, and from cross-examination or the absence of cross-examination of important witnesses called by the [appellant]. They must have included a rejection of evidence of a vast array of factual matters, or, alternatively, a finding that the ground of any adverse treatment of the [appellant] was not a prohibited one. They may well have included adverse findings about the [appellant’s] credibility and/or that of witnesses called on her behalf, or positive findings about the credibility of witnesses called on behalf of the [Commission]. Which of these went to make up the result in any of the ten complaints here under consideration it is impossible to say.

I am also of the view that the Tribunal’s reasons … do not enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the Tribunal’s decision. They do not articulate the ground or grounds on which the decision was based, at least not with any clarity.

I am therefore satisfied that the reasons given by the Tribunal were inadequate for the purposes for which they were required.

…

Does what I have said about the Tribunal’s decision warrant an inference that it failed in some respect to exercise its powers according to law, …? There is no suggestion that the Tribunal took account of irrelevant considerations, but the entire argument in this court has been on the basis that the Tribunal failed to consider the material issues or facts.

As I have previously said, that the Tribunal failed to mention a large number of aspects of the evidence, and failed to mention a large number of arguments put before it creates a feeling of unease about the way in which it went about its task. On the other hand, the Tribunal had heard extensive evidence, it had before it extensive exhibits, and very comprehensive written submissions. I would be hesitant to draw the inference that it did in fact overlook any of the important matters itemised. It was not … necessary for it to detail every piece of evidence, and every argument which it considered. Indeed, given the magnitude of the case and the evidence, such a task would have imposed an impossible burden on the Tribunal. It would have been far better had the Tribunal more comprehensively addressed the evidence, stated the facts it found, the arguments it accepted and rejected, and its conclusions. But its failure to do so does not necessarily create an error of law, at least an error of law such as to render its decision invalid or warrant its being set aside.

The fact that counsel was unable to point to any specific error of law in the decision contra indicates an inference that (except in its duty to give adequate reasons) it failed in some respect to exercise its powers according to law. It must be remembered that the Tribunal is a specialist Tribunal, very familiar with the Act and what a complainant must prove in order to succeed. It cannot but have been conscious of the way in which the [appellant] advanced her case. If there were some real basis for thinking that a more comprehensive statement of reasons might lead the tribunal to a different conclusion that would be a powerful basis for intervention. But there is no such basis, and without some real reason to anticipate the possibility of a different result, I do not think the inadequacy of the reasons should invalidate the decision.

… in the present case, an uninvolved reader of the decision in isolation would not appreciate the intricacies of the factual and legal issues, but I do not believe that to be sufficient to invalidate the decision.”

132   Reference has already been made to the appellant’s introduction of irrelevant issues; for example, her reference to the “central” importance of her alleged nervous breakdown and her persistence in the allegations of personal antagonism against Mr Ryan and, derivatively, Mr McLauchlan. “Fact” (vii) in paragraph 15 above, relating to audits, provides another example. The appellant argued that the deficiencies revealed by the 1987 audit at the her college, being - so it was alleged - neither serious nor, alternatively, as serious as deficiencies revealed in earlier audits, could not legitimately be part of the material relied on by the Commission to appoint an MST to the appellant’s college and therefore were evidence of discrimination and/or victimisation. To my mind, that is nonsense, and there was no requirement for the Tribunal to deal with a submission so devoid of logic or merit. 133   Much the same comment is applicable to the appellant’s reliance for the purposes of complaints 6 to 9 on comparisons between the different circumstances in which MSTs were appointed to different colleges, the different methods which the various MSTs adopted and the different conclusions which they reached. I have already expressed some criticisms of the appellant’s comparison theory which underpinned so much of her case. The comparisons undertaken revealed nothing of significance as a basis for a rational argument in relation to complaints 6 to 9. There was an implicit, unwarranted premise, based on the theoretical purpose of MSTs when the concept was first introduced by the Commission, that what was done at the college at Murwillumbah provided some sort of administrative lodestar, deviation from which revealed not only error but error occasioned by discrimination or victimisation. What occurred at the college at Baulkham Hills was used by the appellant to provide a less important, equally irrelevant basis of comparison. However, the appellant’s argument did not, for example, explain why Mr Gleeson, the Registrar at the appellant’s college and the other major participant in the events leading up to the appointment of the MST, at the appellant’s college, could not raise similar objections to the appointment and procedures of that MST notwithstanding that he is a male who, on the evidence, had not made a prior complaint against the Commission to the Board. 134   In my opinion, none of the matters which the appellant relied on, severally or collectively, demonstrated any legal error by the Tribunal, or any deficiency amounting to legal error in the content of its reasons, with respect to the appellant’s complaints 6 to 9. 135   Complaints 10, 11, 18, 19, 20 and 21 related to the Commission’s conduct towards the appellant after it received the MST report. Unfortunately, complaints 18, 19, 20 and 21 were neither discussed in the reasons of the primary judge nor made the subject of detailed argument in this Court. All six complaints are broadly related to similar matters, and I have identified no sufficient reason why the result in relation to complaints 18 and 20 should be different from the result in respect of complaint 10, or the result in relation to complaints 19 and 21 should be different from the result in relation to complaint 11. 136   One allegation raised by the appellant was that the Strathfield College Registrar at the time when the MST attended the College and reported, Charles Gleeson, was treated differently from her in that he was “allowed to transfer at his own request to another college …”. Initially, the appellant put the matter higher, alleging that Mr Gleeson was “… permitted … to transfer at his own request, and without any loss of rank, prestige or entitlements, to another college”. This was another example of a flawed attempt by the appellant to build her case upon comparisons which were entirely without substance. 137   The appellant had herself urged the Commission to transfer Mr Gleeson, who was patently unable to cope with his duties as Registrar at Strathfield College. Indeed, in another manifestation, it was the appellant’s contention that the problems at Strathfield College were substantially, if not wholly, attributable to Mr Gleeson’s unsuitability for the position of Registrar there. Mr Gleeson was not “allowed” or “permitted” to transfer, but was transferred by the Commission to another college as an Assistant Registrar. 138   In any event, there is a fundamental flaw in the appellant’s case with respect to complaints 10, 18 and 20 which allege discrimination on the basis of the appellant’s sex. The Tribunal noted that, in her evidence, the appellant acknowledged that Mr Brinsden’s decision requiring her to undertake retraining for a period of 12 months “was free of discrimination… on the ground of sex”. 139   The appellant’s remaining complaints 11, 19, and 21 concerned the Commission’s failure to:

(i) put matters adverse to her in the MST report for her comment prior to ordering her to undertake retraining for a period of twelve months;
(ii) implement other alternatives for readdressing the problems that were the subject of the MST report; and
(iii) withdraw the order requiring her to undertake retraining (as soon as it reached conclusion that there was no specific finding against her in the MST report).

140   Those omissions by the Commission were alleged to be attributable to the appellant’s earlier complaint of (victimisation) to the Board. 141   The Commission’s conduct towards the appellant after it received the MST report was plainly unfair and, arguably, the direction that she undertake retraining for a period of 12 months was unreasonable. The Tribunal was required to determine whether the appellant had established that she was treated as she was by the Commission because of her earlier complaint to the Board. 142   The following circumstances were material to that determination:

(i) The MST report concerning the appellant’s college contained the following conclusions and recommendations, which did not support Mr Brinsden’s direction that the appellant under retraining for a period of 12 months, or his preference for more drastic disciplinary action against the appellant.

“ Conclusions


The support team support recognised the presence of college based systems and procedures. However, the extent of knowledge, usage, availability by appropriate College officers and the currency such systems is not effective for the present operation of the College.

We identified the stability of such systems and practices prior to 1988. However, from the beginning of 1988 college management systems and administrative practices have deteriorated to their current level of ineffectiveness. Monitoring processes have broken down at all levels of college management. Both educational and administrative systems and practices are affected.

Of major concern to the operations of the College is the lack of effective team management practices particularly involving the Principal and Registrar. Their leadership roles have been widely criticized by staff, their management roles are causing conflict and the status of the College registrar as a member of the college executive has been eroded. The present Registrar’s inability to make decisions or guarantee action concerned the support team. Collectively this has led to industrial unrest and low morale within the College. The Principal is at her “wits end” and the Registrar is suffering ill health and not coping with the situation.

The lack of effective communication and information flow affecting the operations of all sections, the difficulty in accessing the Principal and Registrar and poor record management practices had contributed to the ineffective management practices and operations of the College.

The end result is a situation which could only be described as crisis management . The Principal, Registrar and office staff are mainly occupied in repair management activities. Educational planning especially involving sectional management in proper planning and monitoring practices was not evident. The matching of human resources and current rostering practices are not fully utilizing the college establishment.

Financial management practices are deficient . The college drawing account is consistently overdrawn and has not been reconciled. The working account cash book for the School of Vehicle Trades has not been balanced since October 1987. The inability to control financial resources at both college and section management levels as gravely affected the operation of the college. It has resulted in poor administration practices affecting monitoring, cash flow, late payment to suppliers, dishonouring of cheques, non reconciliation of accounts, freezes on purchasing and processing of vouchers. The Registrar’s own admission of limited training in this aspect of college operations is noted.

Personnel practices relating to both recruitment and induction are poor. The slow filling of vacancies, particularly that of registrar and Head Teacher appointments (Textiles), the use of temporary staff in preference to filling vacancies and high staff turnover in the college administration have created an unstable environment leading ineffective administrative practices.

The grading of the Registrar is inadequate allowing for the size of the non educational establishment (27.4 EFT) and the seniority of that position compared to the Technical Officer and Librarian.

The accommodation of the administration unit is impractical. It does not allow for proper supervisory practices and limits access to key personnel.

Communication flow in a split campus has inherent problems but simple remedies already addressed would solve such. The future viability of the Beresford Street campus also requires evaluation.

Issues relative to the School of Textiles including curriculum, course relevance, student issues and personnel practices involve both the Principal and head of School. This report has touched on those considered to be of relevance of college operations. There are however sufficient concerns t warrant further discussions with the Head of School and Director Schools.

The support team acknowledges the positive response from individual and groups, e.g. senior staff, to suggestions put forward in our discussions with them. It is hoped that such action will provide the stimulus for staff to establish self help projects at College level to address the particular issues.

Recommendations


1. Urgent departmental action be taken to restore effective and stable college management.
2. A project team comprising both educations and non educational officers should be seconded to restore effective management and administrative systems and practices.
3. The management systems and practices particularly involving communication, planning and monitoring processes and resource management practices must be restored to effective operational levels and implemented.
4. Staff training particularly at senior staff level is required to implement recommendation 3.
5. The appropriateness of all current college vacancies should be investigated and reviewed where appropriate to meet the present college support needs and urgent action taken to then full substantively such positions.
6. Urgent departmental action should be taken to relocate the administration unit into Block B. This will necessitate identifying alternate premises for the Head of School Unit, School of textiles.
7. Concerns expressed in this assessment involving the School of Textiles should be referred to the Director, Schools.
8. The department should review the relative grading of the position of Registrar Grade 3, Metropolitan Colleges.” (Emphasis added)

(ii) A witness for the appellant, whose evidence was not challenged, Mr John White, who retired in July 1989 as Deputy Director General of the Commission, stated:

“… In relation to sending a person on a twelve (12) month compulsory re-training programme with services to be reviewed periodically and at the end of the twelve (12) months to determine whether that person be returned to their substantive position, I would see this as this being disciplinary action such as a demotion, firstly because of the length of the training, and secondly because there was no guarantee that the person was coming back to the position. I have no knowledge of any TAFE Principal being ordered to do re-training, and most certainly not for a twelve (12) month period.”


(iii) Ms Blayden, a consultant hired by the Commission, provided an independent report containing “much … that [was] supportive of” the appellant’s case.

(iv) The Commission did not call Mr Brinsden or Dr Gellatly (who succeeded Mr Brinsden as Director-General and had made statements which “supported the appellant’s case”) as witnesses, or attempt any explanation for its failure to do so. Mr Brinsden’s absence from the witness box was particularly significant. He was the Director General of the Commission and the person who actually made the advance decision concerning the appellant consequent on the MST report. Any inference that the appellant had been victimised which was available from other evidence was facilitated by the failure of Mr Brinsden to explain his reasons for his decision. An explanation which showed that the decision was unrelated to the alleged victimisation would have resolved the matter simply, if Mr Brinsden’s evidence was accepted. The Tribunal could not legitimately avoid the legal significance of the Commission’s failure to adduce evidence from Mr Brinsden by the means it adopted, namely, a statement to the effect that the appellant could have chosen to call Mr Brinsden. For all practical purposes, he represented the Commission in its conduct which was the subject of the appellant’s complaint.

143   As earlier noted, the primary judge considered that significant matters had not been referred to by the Tribunal, but, approaching the question of whether the Tribunal had committed a legal error by reference to the adequacy of its reasons, decided that, although deficient, the Tribunal’s reasons were not so inadequate as to warrant upholding the appellant’s appeal. The reasons given by her Honour for that conclusion are not persuasive. Shortly stated, it was correctly noted that the Tribunal is a specialist body, and, apparently for that reason, held that it was unlikely to have overlooked matters dealt with in evidence and submissions. I do not agree with that proposition or with her Honour’s statement that:

“The fact that counsel was unable to point to any specific error of law in the decision contra indicates an inference that (except in its duty to give adequate reasons) it failed in some respect to exercise its powers according to law …”

144 On the contrary, the approach adopted by the appellant, the multiplicity of issues raised and the volume of material were quite likely to cause confusion, distract the Tribunal from its task, and cause it to overlook some issue. In any event, I consider it impermissible to reason from the premise that a party cannot identify a specific error in law in decisional reasons which do not discuss relevant matters to a conclusion that the decision-maker nonetheless considered those matters and correctly decided the issue to which they are material. In my opinion, it effectively deprives the requirement that reasons be provided of any content if deficiencies in reasons can simply be remedied by an assumption that the tribunal which made the decision is unlikely to have overlooked relevant matters. 145 Although not the only inference available, the inference for which the appellant, “a persistent complainer”, contended before the Tribunal, namely, that the Commission (in effect Mr Brinsden) had treated her as it did, including directing her to undertake retraining for a period of 12 months, because of her earlier complaint to the Board, was rationally open to the Tribunal. I did not understand the Commission to submit to the contrary, or to dispute that such a finding would have constituted a finding of victimisation contrary to s 50 of the Anti-Discrimination Act. It is unnecessary and inappropriate on this appeal to consider whether a finding of victimisation would have been open if the appellant’s earlier complaint to the Board was only one of two or more reasons for the Commission’s conduct: cf s4A of the Anti-Discrimination Act, which came into effect on 8 August 1994 in relation to discrimination. The parties’ essential dispute concerned the Tribunal’s omission of any discussion, material to the present context, of the matters referred to in para 52 above. 146   The Tribunal’s omission did not constitute a jurisdictional error by the Tribunal in the sense discussed in Craig v South Australia. (1995) 184 CLR 163. The task of the Tribunal, acting within jurisdiction, was similar to the ordinary jurisdiction of a court of law, as described in Craig. 184 CLR, at pp 179-180. There, the High Court said: 184 CLR, at pp 179-180.

“…the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

147   It is implicit in the final sentence of that paragraph that a failure to take into account some matter which, as a matter of law, was required to be taken into account in determining a matter within jurisdiction will at least commonly involve error of law. Other authorities See, for example, Sean Investments Pty Ltd v MacKellar (1981) 39 ALR 363, 375 per Deane J; Kioa v West (1985) 159 CLR 550, 630 per Brennan J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42 per Mason J. point out that it is not necessarily an error of law for a decision-maker to fail it take into account a matter which it is permissible, but not obligatory for it, to consider in order to properly decide an issue. There is a degree of circuity in these tests. Nonetheless, they direct attention to the importance or otherwise of considerations which have been disregarded in making a necessary decision. 148 For the reasons which I have given, I am satisfied that the Tribunal was obliged:

(a) to consider collectively the matters referred to in para 52 together with such other considerations as it legitimately considered relevant, in determining whether or not the appellant had been victimised as she alleged in complaints 11, 19, and 21; and
(b) in its reasons, to explain how it reached its determination adverse to the appellant notwithstanding those matters.

149   It follows that I am of opinion that the Tribunal erred in law is dismissing those complaints without considering and discussing those matters. The Tribunal’s failure to give effect to the Commission’s failure to adduce evidence from Mr Brinsden was of particular significance. I am further of opinion that it cannot be concluded that, had the Tribunal properly performed its task, it would have reached conclusions adverse to the appellant in respect of those complaints. The consequence is, in some respects, unappealing. Whether through her own fault or the fault of her advisers, the appellant has misused the beneficial policies of the Anti-Discrimination Act and considerable time and money has been wasted. 150   However, I consider that the appeal should succeed with respect to complaints 11, 19 and 21. The appeal should be dismissed in relation to the other complaints. The judgment below should be set aside in so far as it relates to complaints 11, 19, and 21, which should be remitted to the Equal Opportunity Tribunal for rehearing before a differently constituted Tribunal. The respondent should pay the appellant’s costs of this appeal, and two thirds of her costs in the Administrative Law Division. 151   SHEPPARD AJA: In this matter I have had the advantage of reading the judgments to be delivered by Powell JA and Fitzgerald JA. I am thus saved the necessity of myself giving a detailed account of the facts and issues which were before Simpson J and before the Equal Opportunity Tribunal. 152 The decision of the Equal Opportunity Tribunal was given on 21 December 1994. The appeal from the Tribunal to the Supreme Court was brought pursuant to the provisions of s.118 of the Anti-Discrimination Act 1977 (“the Act”) which, so far as relevant, provides that a party aggrieved by a decision or order of the Tribunal may appeal to the Supreme Court on a question of law. 153 The Act came into force in 1977. It has been amended on a number of subsequent occasions. The events which are in question in these proceedings occurred in 1989 or before. Accordingly, it is the Act as it was in 1989 to which regard should be had. The immediately relevant provisions of the Act are those to be found in the then s.25, read in conjunction with s.24, and s.50. Section 25 is headed, "Discrimination against applicants and employees". Section 25(2) provides that it is unlawful for an employer to discriminate against an employee on the ground of his sex:

"(a) in the terms or conditions of employment which he affords him,
(b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing him or subjecting him to any other detriment."

154 Subsections (1) and (3) of s.24 are as follows:

"(1) A person discriminates against another person on the ground of his sex if, on the ground of -

(a) his sex;
(b) a characteristic that appertains generally to persons of his sex; or
(c) a characteristic that is generally imputed to persons of his sex,


he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of the opposite sex.
… …

(3) A person discriminates against another person on the ground of his sex if he requires the other person to comply with a requirement or condition -

(a) with which a substantially higher proportion of persons of the opposite sex to the sex of the other person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the other person does not or is not able to comply.

155   It may be observed that, at the time the legislation was in the form which it was in 1989, only the male gender was used the intention being to allow the Interpretation Act 1897 to make it clear that the legislation was intended to apply both to males and to females. Since 1989 the form of the legislation has changed so that it is expressed in gender neutral language. 156 At times relevant to the circumstances of this case, s.50 of the Act, which is headed "Victimisation", was, so far as material as follows:

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act;
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act’
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to contravention of this Act; or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

157 The Tribunal is constituted by s.69B of the Act. By s.69C the Tribunal consists of such number of part-time members (being judicial members and members other than judicial members) as may from time to time be appointed by the Governor. Section 69A defines "judicial member" to mean a judicial member of the Tribunal and includes the senior judicial member. "Members" means a member of the Tribunal and includes a judicial member. "Senior judicial member" means the senior judicial member of the Tribunal. Section 69C(2) provides that, where two or more judicial members hold office, one of the judicial members shall be designated by the Governor as the senior judicial member. Section 69E deals with eligibility for appointment. A judicial member is to be a judge of the District Court of New South Wales, a judicial member of the Industrial Relations Commission or a person who is qualified for appointment as a judge of the District Court or as a judicial member of the Industrial Relations Commission. Previously there was no reference in the Act to the Industrial Relations Commission but judges of the Workers’ Compensation Commission of New South Wales, which was then in existence, were eligible for appointment. 158 Subject to s.112 of the Act, the Tribunal shall, for the purpose of exercising its functions, be constituted by three members comprising a judicial member and two members not being judicial members; s.69M. Section 112 has no relevance to the present proceedings. 159 Section 69N provides that, subject to the Act and the Regulations, the procedure for constituting a sitting of the Tribunal shall be determined by the senior judicial member and the procedure for the conduct of a sitting of the Tribunal shall be determined by the judicial member selected for the sitting. 160 In addition to constituting the Tribunal the Act also constitutes the Anti-Discrimination Board. On 9 September 1989 a complaint of discrimination was lodged by the appellant with the Board. The complaint was referred by the Board to the Tribunal on 5 September 1991 as a result of the Board being unable successfully to resolve the dispute by conciliation. In all 26 separate complaints were referred to the Tribunal and dealt with by it in its decision. The terms of the first 21 complaints are set out in the Schedule to the judgment of Powell JA earlier referred to. 161 I respectfully agree with Fitzgerald JA in his conclusion that the complaints which raise the most difficulty are those which relate to the period commencing with the delivery of the report of the management support team to the Commission. For the reasons given by both Powell JA and Fitzgerald JA I am of opinion that the appellant has not shown that it was not well open to the Tribunal to take the view it did concerning the complaints about earlier matters. In this respect I have not overlooked evidence upon which the appellant relies to establish that there was, at the relevant time, a culture of discrimination against women within the Commission. This was a matter discussed with counsel for the Commission during the hearing. He did not suggest that there was no basis for the matters relied upon by the appellant. He explained the existence of it, partly at least, upon the basis that the Technical Colleges which existed prior to the Commission and the Colleges of TAFE which replaced them were mainly trade courses and undertaken by males. For the most part administrators and lecturers or teachers were male simply because of the nature of the trades which were involved and their history. All of this, fortunately, has undergone a substantial change in more recent years. But, as counsel conceded, there remains a lingering problem in some areas of the Public Service as well as in other organisations in both the public and private sectors. It may take a long time for this to disappear completely. 162 In a case such as this one cannot deal in generalities. One must deal in specifics. One must come to a conclusion in a given case whether or not there has been discrimination of the kind specified by the Act or victimisation within the meaning of s.50 of the Act; see generally the judgments of the members of this Court in Australian Iron & Steel Pty Limited v Najdovska (1988) 12 NSWLR 587. I must say that I have some difficulty in understanding the parameters of s.50 of the Act dealing with victimisation. There was no close analysis of the section in any of the parties’ oral or written submissions. The matter is not dealt with to any extent in the judgment appealed from nor in the decision of the Tribunal. 163 Section 50(1) contains four lettered paragraphs and some concluding words. My problem, uninstructed by assistance from counsel, is to understand how it is claimed that this is a victimisation case. I emphasise that we are not concerned with victimisation generally. Our concern must be whether there has been victimisation within the meaning of the Act. My impression is that the purpose of s. 50 was to proscribe conduct which victimised an employee who had in some way complained of or taken action in respect of conduct perceived to be in breach of one of the earlier provisions of the Act. As I understand the facts of this matter it is not a case of that kind. Thus Para 9(1)(c) of s.50 speaks of the subjection of another person to a detriment on the ground that the person victimised has alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of the Act, and, in a much more general way, para (d) speaks of the subjection of another person to a detriment on the ground that the person victimised has "otherwise done anything" under or by reference to the Act in relation to the discriminator or any other person. The concluding words of the subsection do not seem to be different in their effect. 164 This case involves the question whether the Commission or persons within it, on the ground of the appellant's sex, treated her less favourably in the same circumstances, or in circumstances which are not materially different, than it or they would have treated a male person. That was the case which was advanced. The appellant contended that, if she had been a male principal, the Commission would never have appointed a Management Support Team to investigate a perceived problem within the college, at least in the manner in which the Management Support Team was here appointed. For this purpose instances of the appointment of other Management Support Teams in respect of colleges were referred to. In these cases there were male principals. As was discussed during the run of the argument, I do not perceive why a management decision to appoint a Management Support Team in respect of a particular college made in respect of one college provides of itself evidence of a usual practice in relation to the appointment of such teams or a usual practice in relation to their appointment where principals are males. 165 The objective facts of the matter establish that the Strathfield College was, to use an expression, in a mess. The administration had to do something about it. The appellant herself had complained about a variety of problems. There were concerns about the ability of the Secretary, Mr Gleeson, to cope with his duties. There was a public interest in the affairs of the Strathfield College being investigated and put in order. The Commission had a public duty to see that that was done. I well appreciate that the appellant may have felt slighted by what occurred but I do not believe that the evidence upon which she relied demonstrated that there was here discrimination within the meaning of the relevant provisions of the Act. It did not necessarily establish that she was treated less favourably than a male principal would have been treated in similar circumstances. It was thus well open to the Tribunal on the evidence before it to conclude that, whatever the rights and wrongs of the Commission’s action in appointing a management support team, the appointment of it was not shown to be discrimination within the meaning of the statute. 166 The position becomes more difficult for the Commission once the report of the Management Support Team issued. Certainly the Commission does not appear to have handled the matter very well. Good relationships demanded that the report be discussed fully with the appellant, that she be given an opportunity to deal with the various statements to be found in it, particularly those that concerned her, and that there be a full opportunity for discussion between the appellant and the appropriate Commission staff. None of this seems to have occurred. A precipitate decision was made that the appellant undergo the retraining referred to in the other judgments. It is then that one enters the territory of the later complaints. 167 This is the area of the case which concerned the primary judge and I well understand that it might. The relevant part of her Honour's judgment is as follows:

"… what can readily be discerned from the reasons is that the Tribunal was not satisfied either that the plaintiff was treated less favourably than an actual or hypothetical comparable male, or that, if she were so treated, it was on a proscribed ground. What is not at all readily discernible is the process which led the Tribunal to those conclusions. Indeed it is not clear whether it was the first or the second or both elements of which the Tribunal was not satisfied. The 'constituent facts' of the reasoning on which it acted must have included either rejection of the evidence of a climate of the discrimination within TAFE or a finding that, whatever the climate, it did not influence the treatment of the plaintiff. They must have included rejection of the arguments concerning inferences to be drawn from the absence of some apparently material witnesses, and from cross-examination or the absence of cross-examination of important witnesses called by the plaintiff. They must have included rejection of evidence of a vast array of factual matters, or alternatively, a finding that the ground of any adverse treatment of the plaintiff was not a prohibited one. They may well have included adverse findings about the plaintiff's credibility and/or that of witnesses called on her behalf, or positive findings about the credibility of witnesses called on behalf of the defendant. Which of these went to make up the result in any of the ten complaints here under consideration it is impossible to say."

168   Earlier her Honour had discussed the decision of this Court in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247, my own decision in Brackenreg v Comcare Australia (1995) 56 FCR 335 and some other authorities. Her Honour referred in some detail to what had been said in Soulemezis by McHugh J (then a judge of this Court) at 279-280 and Mahoney JA (at 269-273). Her Honour added to what she had said in the passage I have quoted from her judgment her opinion that the Tribunal's reasons failed to meet the purposes referred to by McHugh J in Soulemezis in that they did not enable the parties to see the extent to which their arguments had been understood and accepted as well as the basis of the Tribunal's decision. They did not articulate the ground or grounds on which the decision was based, at least not with any clarity. Her Honour's ultimate conclusion was that the reasons given by the Tribunal were inadequate for the purposes for which they were required. She went on to deal with the consequences of her conclusion. 169   Her Honour posed the question whether the Tribunal's decision warranted the inference that it had failed in some respect to exercise its powers according to law. She said that there was no suggestion that the Tribunal took account of irrelevant considerations; the entire argument before her had been on the basis that the Tribunal failed to consider material issues or facts or, perhaps more correctly, had failed to show in its reasons that it had considered the material issues or facts of the matter. She emphasised this by saying that the Tribunal had failed to mention a large number of aspects of the evidence and failed to mention a large number of arguments put before it and that this created a "feeling of unease" about the way in which it had gone about its task. But she also said that the Tribunal had heard extensive evidence. It had before it extensive exhibits and it had had very comprehensive written submissions. She added, "I would be hesitant to draw the inference that it did in fact overlook any of the important matters so itemised." She said that it would have been far better had the Tribunal more comprehensively addressed the evidence, stated the facts it found, the arguments it accepted and rejected, and its conclusions. But, in her opinion, its failure to do so did not necessarily create an error of law or, at least an error of law such as to render the decision invalid or warrant its being set aside. Her Honour also said:

"The fact that counsel was unable to point to any specific error of law in the decision contra indicates an inference that (except in its duty to give adequate reasons) it failed in some respect to exercise its powers according to law. It must be remembered that the Tribunal is a specialist Tribunal, very familiar with the Act and what a complainant must prove in order to succeed. It cannot but have been conscious of the way in which the plaintiff advanced her case. If there were some real basis for thinking that a more comprehensive statement of reasons might lead the Tribunal to a different conclusion that would be a powerful basis for intervention. But there is no such basis, and without some real reason to anticipate the possibility of a different result, I do not think the inadequacy of the reasons should invalidate the decision."

170 It would seem that in the way the case was run before her Honour, it began as a case in which it was said on behalf of the appellant that the Tribunal had omitted relevant considerations from account and ended as a case in which the gravamen of the complaint made by the appellant was that the Tribunal had not discharged the obligation imposed by s.117 of the Act to give reasons for its decision. But, as was discussed with counsel for the appellant during the argument before us, a failure to refer to the various matters not mentioned by the Tribunal could well be indicative of a failure to take relevant considerations into account. The law in relation to that matter is that stated by Mason J (as he was), in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-42. The passage to which I have referred is well known and I do not repeat it. What I do say is that the appellant's case before us was plainly put by her counsel on two bases; a failure to take relevant considerations into account and a material failure to give reasons. Of course the two bases tend to merge because the failure to take relevant considerations into account as counsel submitted, may be evidenced by the omission of reference to the matters which are said to comprise the relevant considerations omitted from account. 171 In a case such as this a simple statement of the proposition advanced by counsel tends to mask an underlying difficulty. This appeal lies only on a question of law. The proceedings in Peko-Wallsend did not comprise an appeal whether limited to questions of law or otherwise. The original application was an application for judicial review made pursuant to the Administrative Decisions (Judicial Review) Act, 1977 (Cwth). In the passage from his judgment in Peko-Wallsend earlier referred to, Mason J emphasised (at 40-41) that the role of a court reviewing the exercise of an administrative discretion was limited. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned. It followed that, in the absence of any statutory indication of the weight to be given to various considerations, it was generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which were then required to be taken into account in exercising the statutory power. Mason J said that he had used the word “generally” because both principle and authority indicated that in some circumstances a court might set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance or had given excessive weight to a relevant factor of no great importance. 172 Earlier Mason J had said (39-40) that the factors a decision-maker was bound to consider in making the decision were determined by the construction of the statute conferring the discretion. If the relevant factors were not expressly stated, they were to be determined by implication from the subject-matter, scope and purpose of the Act. So where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. 173 Here the matters said to have been omitted from account are matters of fact. They were plainly matters relevant to the determination of the matter which was before the Tribunal. If there was such a failure, it may mean that the hearing before the Tribunal miscarried. Nevertheless, there remains a question whether there was, assuming relevant considerations to have been omitted, an error of law as distinct from some other kind of error. 174 Federally the distinction is underlined by the existence of two complementary pieces of legislation, the Judicial Review Act to which I have referred and the Administrative Appeals Tribunal Act, 1975 (Cwth) which provides for appeals from some administrative decisions to the Tribunal on the merits. Appeals from the Tribunal to the Federal Court are limited to appeals on questions of law; (s.44). In a given case a person dissatisfied with an administrative decision may wish to appeal to the Administrative Appeals Tribunal on the merits but may also take the precaution of instituting proceedings for judicial review in the Federal Court in case of dissatisfaction with the Tribunal’s decision on the merits. Such a course puts beyond question the applicant’s right to have the matter dealt with in the Federal Court either by way of appeal on a question of law from the Tribunal or by way of judicial review of the original administrative decision. In cases to which the common law applies, it may be that the correct analysis would involve a person dissatisfied with an administrative decision exercising his right to seek judicial review by way of proceedings in the nature of proceedings for one of the prerogative writs and at the same time appealing to the statutory Tribunal. In the event of an adverse decision from the Tribunal, he would have his remedy either in judicial review or by way of an appeal on a question of law from the relevant Tribunal. 175   None of this was the subject of argument before us and I am loath to express any concluded view about it. Fortunately the matter is not critical because of another consideration. Simpson J, notwithstanding her substantial criticism of the Tribunal’s decision, decided that it would be wrong to conclude that the various matters relied upon by the appellant had in fact been omitted from its consideration of the matter. She drew the inference that the material must have been considered and the matters relied upon by the appellant rejected. All I can say is that that may or may not have been the case. One cannot tell. The fact that, in a given case, that can be so demonstrates the legislature’s wisdom in including in legislation of this kind a requirement that reasons be given. If the requirement is complied with, one can see what has been taken into account and the basis for the decision which has been arrived at. Here it has not been complied with but one does not know whether that is because the relevant matters were in fact omitted from consideration or whether the Tribunal considered them but for one reason or another neglected to mention them. 176   These considerations lead to the conclusion that this case has to be viewed as one in which the appellant must demonstrate a failure to give adequate reasons and that this failure constitutes an error of law. I do not consider that the appellant’s attempt to rely on failure to take into account relevant considerations can succeed. On the available material the appellant cannot show that the Tribunal did in fact omit material considerations from its deliberations about the matter. That means that the possible difficulties earlier adverted to concerning differences between the nature of an appeal on a question of law and the process of judicial review can be put aside. Thus the case should be viewed as one in which the error of law, if error there be, must be found in a failure to give adequate reasons. I turn to that question. 177   Her Honour's criticism of the omissions from the Tribunal's reasons of the important matters to which she refers was not really the subject of challenge before us, nor do I think it could have been. Clearly the Tribunal's reasons are wanting because of the matters stated by her Honour. 178   There was discussion during the argument about the circumstances in which the failure to give reasons might give rise to a question of law. As mentioned, reference was made to my own decision in Brackenreg in which I did not follow the approach advocated by Brennan J (as he was) in Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446 where his Honour said that the remedy for a failure to fulfil an obligation such as was imposed by the Administrative Appeals Tribunal Act 1975, s.43 was a mandatory order by the Court to the Tribunal to do its duty. Although Brennan J’s judgment in O’Brien was a dissenting one, no other member of the Court dealt with this matter. Brennan J was the only judge to express the view to which I have referred. Despite his dissent, his statement is highly persuasive and ought to be given substantial weight. Nevertheless it is not binding on this Court. 179   In Brackenreg I did find that there was, in the circumstances of that case, an error of law for failing to refer to relevant evidence and to make findings about it. It may be that Brackenreg can be distinguished from the present case because of the more specific provisions of s.43 of the Administrative Appeals Tribunal Act. It is unnecessary to reach a conclusion on whether the difference in the language used in each of the sections is material. So far as Brackenreg is concerned, all I would say is that, having reconsidered it, I would not wish to qualify it or change it in any way. 180   Decisions both of this Court and of other Courts make it clear that a Court engaged in the task of judicial review ought not be astute to find fault with the reasoning process of Tribunals whose decisions are the subject of an appeal or are being reviewed. The same approach is applied to courts as witness the remarks made both by McHugh J and Mahoney JA in Soulemezis. Nevertheless, it is fair to say that in the present case the Tribunal in question is a formal Tribunal. It is presided over by a person who, if not a judge of the District Court or a judicial member of the Industrial Relations Commission, is qualified to be so. I would not think it right to apply a standard less demanding than that propounded by the judges in Soulemezis. But that having been said, the matter is not much advanced. Her Honour's criticisms remain and the question she posed, namely what ought the result be remains to be answered. 181 My approach to the problem is to come back to the terms of s.24 of the Act. As mentioned, I do not think that the terms of s.50 of the Act can apply to the circumstances of this case. What the appellant had to show was that she was discriminated against on the ground of her sex because she was treated less favourably than in the same circumstances, or in circumstances which were not materially different, as a male person would have been treated.. For reasons given, I think the treatment accorded the appellant was something less than good relationships required. But that does not mean that she has brought herself within the section. Having considered generally the submissions made by counsel for the appellant to the Tribunal and the evidence which it is claimed the Tribunal failed to mention and thus to take it into account, I do not perceive how it can be said that this case discloses discrimination within the meaning of the Act. There is nothing to suggest that the appellant suffered the treatment she did because of her sex. Nothing was said in the run of this case in relation to the rules of natural justice. Whether, when the report of the Management Support Team was received by the respondent, it was obliged to accord the appellant natural justice particularly in the light of its decision to impose upon her the retraining programme which was decided upon without reference to her, I have not considered. There was no submission to this effect no doubt because a denial of natural justice, if there were one, could not, in the circumstances of this case and in the confines of the Act, have played a conclusive role in the matter. What the appellant relied upon was the different treatment accorded Mr Gleeson. He was moved to another college but, as I understand it, to a less demanding and less responsible position thought to be within his capacities and abilities. I cannot think that that of itself provides evidence of discrimination against the appellant on the ground of sex. She was a principal, he was a secretary. The respondent had to make up its mind how to deal with the situation in relation to each of the officers. The fact that it chose one course in respect of Mr Gleeson and another in respect of the appellant could not, in my view, establish the case which the appellant sought to make. 182 I have made these remarks not unmindful of the appellant's evidence before the Tribunal acknowledging that Mr Brinsden's decision (referred to in the other judgments) requiring the appellant to undertake retaining for a period of 12 months was free of discrimination on the ground of her sex. I have some hesitation, however, in regarding her concession as conclusive of the outcome of these proceedings in relation to the grounds based on discrimination. Counsel for the appellant relied on complaints based on the appellant's being required to undertake retraining. I am inclined to think that the better view is that the concession, although an important factor, has not the determinative effect contended for by counsel for the respondent. For my part, the matter is not critical because of the views I have expressed in the previous paragraph. 183 The powers of this Court are provided for in s.118(3) of the Act. They are either to remit the decision of the Court to the Tribunal or to make such other order in relation to the appeal as the Court thinks fit. If the matter is remitted to the Tribunal, a further hearing of it will be required. It will be necessary to convene a differently constituted Tribunal. The events in question in this matter occurred ten years ago. The hearing before the Tribunal occupied thirty hearing days spread over two years. Its decision was given in 1994. The appeal from that decision was disposed of in 1997. It seems to me to be quite undesirable to remit a matter with this history for a further hearing unless one can have at least some confidence in the appellant’s chances of success. In my opinion the strong likelihood is that a re-hearing of the matter would lead to the same result but only after another protracted and expensive hearing. I see no purpose in this. I think the Tribunal’s reasons were deficient for the reasons given by Simpson J. But I do not think that that deficiency, unfortunate though it was, is sufficient to found an application for a further hearing. My views in this respect stem from my conviction that the case brought by the appellant was based on an assumption that the evidence demonstrated that there was, if not victimisation, then at least discrimination within the meaning of the Act. I think that the appellant may have just reason for complaining that she was not treated fairly and that things might have been done differently. But her case is limited to one brought under the Act and the material suggests to me that this is not a case where the evidence would lead a tribunal of fact to the conclusion that she had been discriminated against on the ground of her sex. I have no doubt that she feels strongly that she was. But, looking at the matter objectively, I do not think that that case was made out. To order a further hearing would simply bring about a situation in which her expectations were raised, more expense was incurred and yet she would very likely be left in the position in which she now finds herself. 184 In the result I would dismiss the appeal. I agree in the orders proposed by Powell JA.

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