ACT Fire Brigade v Ken Nester
[2004] ACTSC 125
ACT FIRE BRIGADE v KEN NESTER
[2004] ACTSC 125 (10 December 2004)
APPEAL – decision of Australian Capital Territory Discrimination Tribunal – error of law – finding of fact in respect of action by Fire Brigade – finding of impairment on part of respondent – no link between action and actual or perceived impairment – such a link is required under s 8(1) of the Discrimination Act1991 (ACT) – whether the matter should be remitted to a reconstituted Tribunal
COSTS – whether the Federal Proceedings (Costs) Act 1981 (Cth) has been shown to apply to appeals from the Discrimination Tribunal to the Supreme Court ACT
Commonwealth of Australia Constitution Act 1901 (Cth) s 71
Discrimination Act 1991 (ACT) s 4, s 7, s 8, s 10
Federal Proceedings (Costs) Act 1981 (Cth) s 3
Allan and Repatriation Commission, Re (2003) 77 ALD 140
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Craig v South Australia (1995) 185 CLR 163
Kowalski v Domestic Violence Crisis Service Inc [2002] FCA 1227
Lennox Hewitt v Queensland Newspapers Pty Ltd [1998] SCACT 80
Lynch v Minister for Human Services and Health (1995) 61 FCR 515
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
ON APPEAL FROM THE DISCRIMINATION TRIBUNAL
No SCA 19 of 2004
Judge: Bennett J
Supreme Court of the ACT
Date: 10 December 2004
IN THE SUPREME COURT OF THE )
) No SCA 19 of 2004
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE DISCRIMINATION TRIBUNAL
BETWEEN:ACT FIRE BRIGADE
Appellant
AND:KEN NESTER
Respondent
ORDER
Judge: Bennett J
Date: 10 December 2004
Place: Canberra
THE COURT ORDERS THAT:
the matter be remitted to the Australian Capital Territory Discrimination Tribunal for determination according to law; and
each party pay its own costs of the appeal.
Background/History
The nature of the complaint the subject of the appeal from the Australian Capital Territory Discrimination Tribunal (‘the Tribunal’) is set out in paragraphs [1] to [3] of the Tribunal’s reasons:
1. On 24 October 2002 the complainant, an officer of the ACT Fire Brigade, lodged a complaint with the Discrimination Commissioner alleging that he had been discriminated against by the respondent in the area of employment because of his profession, trade, occupation or calling.
2. Prior to the events complained of the complainant's duties were involved in fire brigade operations. In a brief outline of his complaint to the Discrimination Commissioner, the complainant said that following the investigation of an incident involving him by a senior officer of the respondent he had been instructed to report for day duty work at the completion of his annual leave. He had been told that his transfer to day duty work would not preclude overtime and other entitlements but he had been denied these benefits.
3. At the suggestion of the Discrimination Commissioner the complainant amended his complaint to allege that the reason for the respondent's discriminatory treatment of the complainant was an impairment which the respondent presumed the complainant had.
After dealing with the evidence and giving reasons, the Tribunal considered (at [108]) ‘that the respondent transferred the complainant to non-operational duties in a manner that involved procedural unfairness to the complainant’ and that this constituted unfavourable treatment within the meaning of s 8(1)(a) of the Discrimination Act 1991 (ACT)(‘the Act’). This would constitute discrimination under s 10(2)(a) of the Act. The Tribunal ordered the respondent in the proceedings before it, the appellant in these proceedings, to reinstate the complainant to the position he had previously occupied and to pay costs.
Grounds of Appeal
The appellant (‘the Fire Brigade’) identified nineteen grounds of appeal. Written submissions by both parties canvassed a number of issues. The argument included a consideration and an analysis of the question of “operational” and “non-operational” overtime and the comments of the Tribunal in that regard.
The findings of the Tribunal
The Tribunal found that a causal nexus between the claimed unfavourable treatment and the presumption as to the complainant’s impairment had been established.
The Tribunal recorded at [80] the submission on behalf of Mr Nester:
…that his transfer to non-operational duties was, in the circumstances, unfavourable treatment of him because of the resultant loss of overtime entitlements that he had the benefit of as an operational officer and the denial of natural justice accorded him in arriving at the decision to transfer him.
The Tribunal found, at [92], that ‘the complainant was not dealt with fairly in the making of the decision to transfer him and that the failure to do so involves unfavourable treatment of him’.
At [93], the Tribunal concluded that the ‘terms or conditions of employment which the employer affords the employee’, as referred to in s 10(2)(a) of the Act, encompass all of the legal rights, including express and implied terms of contract and of custom and practice. In the opinion of the Tribunal, ‘custom and practice in public employment dictate that employees be treated fairly in decisions which affect them adversely in the workplace.’
Although much of the Tribunal’s decision deals with other matters, including issues which arise under s 8(1)(a) of the Act and the issue of overtime, the conclusion of the Tribunal was set out in [95] of the reasons:
I conclude that the complainant was treated unfavourably in the terms or conditions of employment that the respondent afforded the complainant. Alternatively, I consider that the complainant was subjected to other detriment by not being transferred in circumstances that accorded him procedural fairness.
The wording of that conclusion relevantly mirrors the wording of s 10(2)(a) and 10(2)(d) of the Act. The only consideration of terms or conditions of employment referred to was in relation to the right to be treated fairly. It is important to note that there is no discussion of overtime in the context of s 10(2)(a) or, indeed, s 10(2)(d).
The Tribunal made no other finding of discrimination under Part 3 of the Act.
The proceedings before the Court
After a day of hearing, which dealt with the range of matters referred to in the Tribunal’s reasons, the amended notice of appeal and the written submissions, I drew the attention of the parties to the actual basis for the decision of the Tribunal in [95] of the reasons.
As I read the Tribunal’s decision, the only finding by the Tribunal of unfavourable treatment in the terms or conditions of employment was in respect of custom and practice requiring that the respondent (‘Mr Nester’) be treated fairly in the decision that affected him adversely. There was no link or causal nexus found between that treatment and Mr Nester’s presumed impairment. The causal nexus found by the Tribunal and submitted by the solicitor then appearing for Mr Nester was in respect of his transfer from “operational” to “non-operational” duties.
Similarly, there is no link or causal nexus found by the Tribunal between the denial of procedural fairness and any disability or presumed disability suffered by Mr Nester.
Counsel for each party agreed that [95] was the basis for the Tribunal decision. It was agreed that there was no evidence before the Tribunal that the denial of natural justice was actuated by a perception that Mr Nester was suffering from an impairment. Accordingly, in the words of counsel for Mr Nester, Mr Selby, this is a ‘fundamental flaw’ and the appeal should succeed.
In the circumstances, no other aspect of the appeal arose for consideration.
Mr Selby submitted that the appropriate course was that the appeal be remitted to the Tribunal for determination according to law. Mr Pappas, counsel for the appellant, submitted that the appeal should be allowed and the complaint dismissed.
One of the grounds of appeal in the amended notice of appeal was that the Fire Brigade was denied natural justice in respect of the application of s 10(2)(a). If that were the basis of the Tribunal’s error, clearly the matter should be remitted. Mr Pappas sought leave to amend the amended notice of appeal to abandon that ground. Subject to a submission to be made on costs, that application was not opposed. I granted leave so to amend.
Should the proceedings be remitted to the Tribunal
There was no dispute that the actions of the Fire Brigade would only be unlawful if one of the reasons for its treatment of the respondent (‘Mr Nester’), even if not the dominant or substantial reason (s 4(3)), was his impairment. The Tribunal accepted that s 8 of the Act makes it necessary to establish a causative link between the conduct complained of and the adverse consequences for the person making the complaint.
The question then arose as to the disposition of the appeal and costs. By consent, I directed the parties to file written submissions on these questions.
The Fire Brigade’s submissions can be summarised as follows:
(a) There was, as conceded by Mr Selby, no evidence before the Tribunal which would have established a causal connection between the procedural unfairness afforded Mr Nester by the Fire Brigade and any impairment.
(b) The material before the Court contains the evidence before the Tribunal as well as the Tribunal’s findings of fact.
(c) The Court is in a position to make any necessary findings of fact and to apply the law to those facts.
(d) There is no utility in remitting the matter to the Tribunal to repeat arguments advanced on the appeal.
(e) There is no good reason to remit the matter.
(f) The interests of administration of justice and timely resolution favour the matter being determined by the Court and not remitted. In particular, there should be finality of litigation where possible.
(g) While the Tribunal made findings in relation to Mr Nester’s loss of overtime on transfer, it has appeared to have ignored relevant evidence in relation to the loss of overtime. However, loss of operational overtime cannot be brought within s 10(2) (b), (c) or (d) of the Act.
Mr Pappas also referred to the abandonment before the Tribunal of reliance upon s 10(2)(a) of the Act which, he submitted, was the only basis upon which it might be argued that loss of operational overtime was unlawfully discriminatory. Mr Pappas submitted that ‘it would be inequitable and unfair to remit the matter to the Discrimination Tribunal where the respondent might seek to resile from that position’. This abandonment was said to have given the Fire Brigade a ‘forensic advantage’ of which it should not be deprived or ‘even exposed to the possibility that that forensic advantage might be eroded by the remittal of the matter’ to the Tribunal. Mr Pappas also observed that there was no cross-appeal seeking to uphold the Tribunal’s finding on some other ground. I am of the view that the forensic advantage is not sufficient reason to decide not to remit the matter.
Mr Pappas also submitted that ‘it is not apparent that the Tribunal would have found any other discriminatory act apart from the “denial of operational overtime”’. Without expressing any view, I am not prepared to draw that conclusion. It is not apparent that the Tribunal would have found no other discriminatory act. The Tribunal did find that Mr Nester had been denied procedural fairness. The Tribunal failed to make key findings of fact, if such a findings were available on the evidence, linking the unfavourable treatment or detriment with the actual or perceived impairment of Mr Nester.
In his written submissions, Mr Selby submitted that where the Tribunal’s reasons failed to state the statutory basis upon which the decision was based, the matter should remitted to the Tribunal. He submitted that further argument would need to be put to the Tribunal as to the basis for any finding of unlawful discrimination.
I was referred to a number of cases where courts have commented on the lack of utility in remitting a matter to be argued again, including matters on appeal from the Tribunal. Factors such as the necessity for the remitted matter to be heard by a reconstituted Tribunal and a situation where not only was all the evidence considered by the Tribunal before the Court on appeal but all of the necessary findings of fact had also been made, would weigh in favour of a decision not to remit.
As I raised the issue of my concerns part way through the hearing and counsel agreed that the flaw in the Tribunal’s reasoning obviated consideration of the remaining grounds of appeal, there would need to be further argument if the matter proceeded in the Court. No time or costs would be saved. Indeed, if findings of fact are to be made, it would be likely to take more time than it would if the matter were remitted to the Tribunal which has already heard and considered the evidence. These factors, to a large extent, answer the concerns about delay and costs.
If, as raised by Mr Selby, there may be a submission that there will need to be further findings or elucidation of findings of fact, about which I make no comment, the Tribunal, which has already dealt in such detail with the evidence, is better placed to deal with any such application.
Remitted to the same Tribunal or a Tribunal differently constituted?
No matter was raised in the Fire Brigade’s written submissions in chief as to why, if the matter were remitted, it should be to a differently constituted Tribunal. It was, however, pointed out that this is not a case where the credit of witnesses was important to the fact finding by the Tribunal.
Mr Selby submitted that there was no reason for suggesting that a differently constituted Tribunal hear the matter. Indeed, he submitted that the more appropriate course would be a hearing before the same Deputy President.
Mr Selby submitted that it is apparent from the Tribunal’s reasons that it considered the evidence at some length, even though it did not rely upon all of the evidence in the findings that it made. Accordingly, Mr Selby submits that the Deputy President who determined the matter is well equipped to write a new decision that both reflects the evidence before him and sets out the legal basis for a decision.
In written submissions in reply, Mr Pappas submitted that, if remitted, the matter should be heard by a differently constituted Tribunal. He relied upon the decision of the Full Court of the Federal Court in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 (‘Northern NSW’) at 42 where Davies and Foster JJ commented on a situation where the member constituting the Tribunal in the original hearing had already expressed a view upon facts which were to be considered upon remittal. This, their Honours observed, may lead an aggrieved party to think that a rehearing could be worthless. Mr Pappas has cited Northern NSW, as approved by the ACT Supreme Court in Lennox Hewitt v Queensland Newspapers Pty Ltd [1998] SCACT 80 (‘Lennox’) at [42], but has made no submissions as to whether or why they apply in the present case.
In Northern NSW, Davies and Foster JJ confine their observation to cases where the Tribunal has expressed a ‘view’ as to the facts of the case and where it would seem ‘fairer to the parties’ that the matter be heard by a differently constituted Tribunal. Davies and Foster JJ also acknowledge that:
There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again.
In Northern NSW, the tribunal member’s views with respect to the merits of the case put on behalf of the appellant were ‘fully and firmly expressed and were adverse to that company’: Davies and Foster JJ at 43. There have also been a number of cases where the Court commented on whether a matter remitted to a tribunal should or could be heard by the tribunal constituted as it was for the first hearing or leaving this matter to the discretion of the President of the tribunal: see Allan and Repatriation Commission, Re (2003) 77 ALD 140 at 146 per President G Downes J and Lynch v Minister for Human Services and Health (1995) 61 FCR 515 at 519 per Moore J.
In Lennox, an appeal from the decision of a taxing officer of this Court, Crispin J found that the taxing officer had denied the parties an opportunity to be heard regarding a decision to determine costs globally. This is not the case here, as such a ground of appeal was withdrawn. The error identified on the part of the Tribunal here is an error of law.
In my opinion, no ground has been made out that the considerations expressed in Northern NSW and Lennox cases apply. There is no specific suggestion that they do. In the present case, the Tribunal has made findings of fact but has not made a finding of a causal nexus. That finding will or will not be available on the evidence. The Tribunal has not yet expressed its view. The Tribunal has not expressed a view as to the application of s 10 (2)(b) (c) or (d) in the final determination of the complaint.
A hearing before the Tribunal as originally constituted, apprised of the evidence and of the statutory considerations, is well placed to determine this matter, particularly where the error identified in the reasons was, it may be said, in many ways an error in logic and precision in the application of the Act.
Costs
The Fire Brigade seeks an order for costs. It draws attention to a ‘Calderbank offer’ made by letter dated 14 September 2004, after I indicated that the appeal would be upheld for the reasons above. Indemnity costs are sought in relation to the Fire Brigade’s costs that have arisen after that date. The respondent submits that each party should pay its own costs.
It is the case that the appeal was “successful” in the sense that I have determined that the Tribunal made an error of law. However, it was an error that was not identified by either of the parties and was not raised in the amended notice of appeal. The respondent did not identify the error and no notice of contention was filed to support the Tribunal’s decision on other grounds. It was a fundamental error that preceded any consideration of the grounds raised and relied on by the Fire Brigade.
Had it been raised in the amended notice of appeal, many of the costs incurred may have been avoided.
For example, the time spent in the writing of extensive submissions in respect of the nineteen grounds in the amended notice of appeal and the time spent in the hearing of the appeal, could have been avoided. In that regard, I note that as soon as the error was identified, Mr Selby immediately conceded that it meant that the Tribunal decision could not stand. While it is the case that an appeal was properly brought and upheld, the failure to identify the error caused unnecessary costs not only to the Fire Brigade but also to Mr Nester.
The appeal has not disposed of the proceedings. In the circumstances, I make no order with respect to the costs before the Tribunal. That is a matter for the Tribunal. In my opinion the appropriate order is that each party pay its or his own costs of the appeal.
As to the issue of indemnity costs after the “Calderbank letter”, which was annexed to the Fire Brigade’s submissions, no submissions were directed to its contents by either party. The letter was written after the hearing and it is not clear what, if any, costs were incurred after that date. The letter contains an offer with 11 conditions, many of which refer to the ongoing and future relationship between the Fire Brigade and Mr Nester. In the absence of evidence and submissions, I can give no context to many of those conditions. I do not propose to make any order for costs arising out of that letter.
Mr Selby has pointed out that, were there a Suitors Fund or equivalent in the Australian Capital Territory, it might be appropriate to make provision for costs out of that Fund. Mr Selby submits that I should take the lack of such a Fund into consideration when making the order for costs, in that it somehow makes an order that the respondent pay the Fire Brigade’s costs ‘unduly onerous’. In my view, the fact that an order for costs would be onerous is not, of itself, a factor to be taken into consideration if costs are otherwise appropriately payable.
Mr Pappas, in written submissions in reply, suggests that the Federal Proceedings (Costs) Act 1981 (Cth) applies to an appeal from the Tribunal on the basis that the Tribunal is a “court” within the meaning of that Act (s 3) and points to various similarities between the Tribunal and a court. Mr Selby makes no submission in this regard. Bearing in mind the long-standing distinction that has been made in this country between courts and tribunals, I am not persuaded by the Fire Brigade’s submissions: see Commonwealth of Australia Constitution Act 1901 (Cth) s 71; Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 267 – 269 and Craig v South Australia (1995) 185 CLR 163 at 178 – 180. In my view, the Federal Proceedings (Costs) Act 1981 (Cth) does not apply. The absence of any provision for appeals from Tribunals or Commissions, other than the Administrative Appeals Tribunal, seems to be an unfortunate omission, as has already been noted by Madgwick J in Kowalski v Domestic Violence Crisis Service Inc [2002] FCA 1227.
Conclusion
The Tribunal has erred in its application of s 8 and s 10 of the Act. The appropriate orders are first, that the matter be remitted to the Discrimination Tribunal to be determined in accordance with law. There seems to me to be no reason for the matter to be considered by a reconstituted Tribunal. Secondly, that each party bear its own costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Bennett.
Associate:
Date: 10 December 2004
Counsel for the appellant: J Pappas
Solicitor for the appellant: ACT Government Solicitor
Counsel for the respondent: H Selby
Solicitor for the respondent: Ken Johnston Bedford & Co
Date of hearing: 7 and 8 September 2004
Date of judgment: 10 December 2004
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