Chamber of Commerce and Industry of Western Australia (Inc) v The Commissioner of Equal Opportunity
[2001] WASC 306
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CHAMBER OF COMMERCE & INDUSTRY OF WESTERN AUSTRALIA (INC) -v- THE COMMISSIONER OF EQUAL OPPORTUNITY [2001] WASC 306
CORAM: McLURE J
HEARD: 6 JULY 2001
DELIVERED : 9 NOVEMBER 2001
FILE NO/S: CIV 1327 of 2001
BETWEEN: CHAMBER OF COMMERCE & INDUSTRY OF WESTERN AUSTRALIA (INC)
Plaintiff
AND
THE COMMISSIONER OF EQUAL OPPORTUNITY
Defendant
Catchwords:
Equal Opportunity Act 1984 - Whether a person compelled to appear before the Commissioner under s 91(2) can also appear or be represented by a non-legal agent pursuant to s 92(1) - Whether the common law right to be represented by an agent statutorily excluded
Legislation:
Equal Opportunity Act 1984
Associations Incorporation Act 1987
Result:
Action dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr G E Bull
Defendant: Ms H Versey
Solicitors:
Plaintiff: Chamber of Commerce & Industry of WA (Inc)
Defendant: Equal Opportunity Commission
Case(s) referred to in judgment(s):
Australian Securities Commission v Bell (1991) 104 ALR 125
Harding v Coburn (1976) 2 NZLR 577
Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609
R v Assessment Committee of St Mary Abbott's Kensington [1891] 1 QB 378
R v Board of Appeal; Ex parte Kay (1916) 22 CLR 183
R v City of Melbourne; Ex parte Whyte [1949] VLR 257
Case(s) also cited:
C & J Clark Ltd v IR Commissioners [1973] IWLR 905
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Krstic v Australian Telecommunications Commission (1988) 20 FCR 486
O'Toole v Scott [1965] AC 939
R v Port of London Authority; Ex parte Kynoch Ltd [1919] 1 KB 176
Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 14 ALR 1
Thompson v Goold & Co [1910] AC 409
McLURE J:
Introduction
This is an action by the plaintiff for declarations that on a proper construction of ss 91 and 92 of the Equal Opportunity Act 1984 ("the Act"):
1.a party is entitled to appear by an agent other than a solicitor or counsel at a conciliation conducted pursuant to s 91 of the Act;
2.a party who receives a notice under s 91(2) of the Act must attend the conference personally, but is nonetheless entitled to be represented by an agent other than a solicitor or counsel;
3.the Commissioner of Equal Opportunity has no discretion to refuse to permit a party from appearing by an agent other than a solicitor or counsel.
The Facts
The relevant facts in this action are contained in affidavits filed on behalf of the plaintiff and the defendant. The affidavits were admitted in evidence without objection.
The plaintiff is incorporated under the Associations Incorporation Act 1987. Its objects include the promotion, development and protection of the interests of persons, firms, partnerships, companies and others engaged in industry and commerce. It has just under 6,000 members.
The plaintiff assists its members by providing a range of products and services. The services include representation in Industrial Relations Courts and Tribunals and the Equal Opportunity Commission and Tribunal.
On a number of occasions the plaintiff's officers, representing a member or members of the plaintiff, have been denied a right to represent members at conciliation conferences conducted under s 91 of the Act.
There has been an exchange of correspondence between the plaintiff and the defendant concerning this matter. By letter dated 12 May 2000, the Acting Commissioner for Equal Opportunity confirmed the defendant's position being that a complainant or respondent who has been served with a notice under s 91(2) of the Act may be represented in a conciliation conference by an agent only with the defendant's consent.
On 30 June 2000, the plaintiff advised the defendant that it had been instructed by Path Transit Pty Ltd ("Path Transit") to represent its interests in a complaint made by an employee alleging sexual harassment and victimisation. In an attempt to conciliate the complaint, the Acting Commissioner for Equal Opportunity arranged a conference under s 91 of the Act.
Path Transit informed the Acting Commissioner that its equal opportunity adviser, Mr David Jones from the plaintiff, would also attend the conciliation conference. Mr Jones was not permitted to attend the conciliation conference as the agent of Path Transit. By letter dated 2 February 2001, the Acting Commissioner for Equal Opportunity advised the plaintiff in the following terms:
"As you are aware it is the Commissioner's policy that parties should generally appear in person without representation at a conciliation conference unless there are special circumstances that would justify allowing a party, or both parties, to attend for the representative.
In this case there do not appear to be any special circumstances that would justify the Respondent attending with a representative when the Complainant is not represented. This decision is nothing to do with Mr Jones personally, who I acknowledge is an experienced advocate, but is a matter of a longstanding policy of which the CCI is well aware. There is nothing under section 91 or 92 that entitles a Respondent to appear with a representative, without the consent of the Commissioner.
I confirm that to assist the Respondent and to enable it to have its adviser present, Mr Jones is welcome to attend and will be provided with a room where he can wait and speak with his client in private."
The defendant confirmed the policy in an affidavit sworn by her. She said that, as a matter of policy, where she has summonsed parties to appear before her (or a person with delegated powers under s 94) for the purposes of endeavouring to resolve a complaint, representatives should not be present in the conciliation discussions unless there are special circumstances that lead her to believe that a representative, whether legally qualified or not, will assist the conciliation process, or that the circumstances require a person to be represented. The defendant sets out the reasons for the policy. The defendant's affidavit also contains material by way of submission rather than evidence.
The defendant also swore that, to the best of her knowledge and belief, the plaintiff charges a fee for membership and that the advocates who appear for the plaintiff's members are paid employees.
The Act
As appears from the relief sought, this case raises for determination the proper construction of ss 91 and 92 of the Act. Those sections are contained in Pt VII Div 2 of the Act, which division deals with the functions of the Commissioner and the processes and procedures involved in the resolution and determination of a complaint made under the Act.
The first step is that a complaint may be lodged with the Commissioner (s 83). Thereafter, the Commissioner investigates the complaint (s 84). For the purpose of investigating a complaint, the Commissioner has power to obtain information and documents (s 86). Further, the Commissioner has power to give directions to attend a compulsory conference (s 87). Section 87 materially provides:
"(1)For the purpose of investigating a complaint, and endeavouring to resolve the complaint in accordance with section 91, the Commissioner may … direct the persons referred to in subsection (2) to attend, at a time and place specified in the notice, a conference presided over by the Commissioner …
(2)Directions under subsection (1) to attend a conference in relation to a complaint shall be given ‑
(a)to the complainant … ;
(b)to the person who is alleged to have contravened the Act; and
(c)to any other person who, in the opinion of the Commissioner, is likely to be able to provide information relevant to the investigation or whose presence at the conference is, in the opinion of the Commissioner, likely to be conducive to resolving the complaint in accordance with section 91.
(3)…
(4)The Commissioner may, in a notice given to a person under subsection (1), require the person to produce such documents at the conference as are specified in the notice."
Section 88 also deals with compulsory conferences. Subsections (2), (3) and (4) materially provide:
"(2)A conference under this Division shall be held in private and, subject to this Act, shall be conducted in such manner as the person presiding at the conference thinks fit.
(3)Subject to subsection (4), a body of persons, whether corporate or unincorporate, that is directed under section 87 to attend a conference shall be deemed to attend if an officer or employee of that body attends on behalf of that body.
(4)Except with the consent of the person presiding at a conference under this Division —
(a)a natural person is not entitled to be represented at the conference by another person; and
(b)a body of persons, whether corporate or unincorporate, is not entitled to be represented at the conference by a person other than an officer or employee of that body."
Sections 91 and 92 of the Act deal with resolving complaints by conciliation. Section 91 of the Act is in the following terms:
"(1)Where the Commissioner is of the opinion that a complaint … may be resolved by conciliation, the Commissioner shall endeavour to resolve the complaint by conciliation.
(2)The Commissioner may, by notice in writing, require the complainant and the respondent, or either of them, to appear before the Commissioner, either separately or together, for the purpose of endeavouring to resolve the complaint by conciliation."
Section 92 deals with representation in conciliation proceedings. It materially provides:
"(1)A complainant or respondent in conciliation proceedings before the Commissioner —
(a)is entitled to appear personally or, subject to section 91(2), by an agent other than a solicitor or counsel; or
(b)may, by leave of the Commissioner, be represented by a solicitor or counsel.
(2)No person other than a solicitor or counsel is entitled to demand or receive any fee or reward for representing a party in conciliation proceedings before the Commissioner."
In certain circumstances (for example, if a complaint cannot be resolved by conciliation or has not been successfully resolved by conciliation because of the nature of the complaint), the Commissioner is obliged to refer to a complaint to the Equal Opportunity Tribunal ("Tribunal") (s 93).
Section 112 of the Act deals with appearance and representation before the Tribunal. It provides:
"(1)A party to an inquiry —
(a)is entitled to appear personally or where the party is a body corporate, by a director, the secretary or an agent of the body corporate; and
(b)may, by the leave of the Tribunal, be represented by the party’s solicitor or counsel or an agent.
(2)No person, other than a legal practitioner, is entitled to demand or receive any fee or reward for representing a party to an inquiry."
Thus, s 88(4), s 92 and s 112 deal with appearance and/or representation at a compulsory conference, a conciliation conference and before the Tribunal respectively.
The Common Law
There is a principle of statutory construction traditionally formulated in terms of a presumption against interference with common law rights: Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 at 617. As a result, it is proper to approach the questions for determination in this case in the context of the common law.
A person who is entitled to an oral hearing before a statutory Tribunal is entitled at common law to be represented by an agent, which includes a lawyer, unless the statute otherwise provides: R v Board of Appeal; Ex parte Kay (1916) 22 CLR 183; R v Assessment Committee of St Mary Abbott's Kensington [1891] 1 QB 378 at 383.
In Ex parte Kay, the High Court considered the situation of a person whose public service employment rights had been affected and who had a right of appeal to a Board (which would then make a recommendation to the Commissioner). Griffiths CJ said (at 185) the appellant was entitled to be heard before the board by an agent (and thus had a right to demand to be heard by counsel). Barton J said (at pp 185 ‑ 186):
"Ordinarily, every person may at common law appoint an agent to represent his interests in all cases in which his personal presence to assert them is not a necessity of the case, either in its nature or by some law. I take it he has the same power at common law in respect of rights conferred on him by Statute ... ."
Isaacs J said (at p 186) that there was a prima facie common law right of any person who has a statutory right to appear before a non‑judicial Tribunal to conduct his business before the Tribunal by an agent.
The common law right to appear by an agent is an aspect of an individual's right to natural justice and procedural fairness. If there is no right to an oral hearing, the common law right to act by an agent does not arise: R v City of Melbourne; Ex parte Whyte [1949] VLR 257.
Further, the requirements of natural justice or procedural fairness depend on the circumstances of the case, the nature of the inquiry, the rules under which a Tribunal is acting and the subject matter that is being dealt with. The requirement for procedural fairness is not a label for any fixed body of rules, because what is fair depends on the circumstances: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at pp 503 ‑ 504; Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 at 514 ‑ 515.
The issue in this case is whether the common law right to appear or be represented by an agent would apply to conciliation proceedings of the nature provided for in the Act, and if so, whether it has been excluded by the Act.
The Construction of the Act
Section 92 of the Act refers to "conciliation proceedings". That phrase is not defined. However, it would appear to refer to steps (by way of meeting, conference or otherwise) to resolve a complaint by conciliation. It may or may not involve the parties being required to appear before the Commissioner. Conciliation proceedings are separate from the compulsory conference procedure although the latter procedure is available for the purpose of endeavouring to resolve a complaint.
Section 92(1)(a) gives a complainant or a respondent an entitlement to appear personally in conciliation proceedings or, subject to s 91(2), by an agent (other than a legal practitioner).
As a matter of statutory construction, the term "subject to" in s 92(1)(a) means that in the event of a conflict between s 91(2) and s 92(1)(a), the former prevails. However, it is said the phrase throws no light on whether in fact there is a conflict between the relevant provisions: Harding v Coburn (1976) 2 NZLR 577 at 582.
In the event the Commissioner issues a notice under s 91(2) of the Act requiring the appearance of the complainant and/or the respondent before her, the complainant or respondent must appear personally and he or she is not excused from personal attendance by virtue of s 92(1)(a) of the Act. So much is common ground between the plaintiff and the defendant.
However, the plaintiff says that where a party has been served with a notice under s 91(2), the party must appear personally but is also entitled by virtue of s 92(1)(a) to be represented by an agent. The defendant says the entitlement given in s 92(1)(a) to appear by an agent ceases when a party is obliged to appear in conciliation proceedings pursuant to a notice under s 91(2) of the Act.
Section 92 (like s 112 but unlike s 88(4)) deals separately with appearance and representation of a complainant or respondent in conciliation proceedings.
Section 88(4) does not deal with appearance. It deals with representation. A person required to attend a conference is not entitled to be represented by anyone, except with the consent of the person presiding. The focus on representation in s 88(4) is understandable. A person (including a party) who attends a conference pursuant to a direction must attend in person. This is to be contrasted with conciliation proceedings where the Commissioner has a discretion to compel a party to appear personally.
Further, the Act treats the entitlement to appear in conciliation proceedings differently from the entitlement to appear before the Tribunal. In conciliation proceedings, a party is entitled to appear personally or, subject to s 91(2), by an agent other than a solicitor or counsel. However, before the Tribunal, the right to appear by an agent is expressly confined to a party who is a body corporate (and thus entitled to be represented by a director, secretary or an agent of the body corporate).
The statutory discretion to permit a party to be represented in conciliation proceedings is also in different terms than the discretion to permit a party to be represented before the Tribunal. Section 92(1)(b) gives the Commissioner the discretion to permit a party to be represented by a solicitor or counsel. There is no reference in that subparagraph to an agent. Section 112(1)(b) specifically gives the Tribunal the discretion to permit a party to an inquiry be represented by a solicitor, counsel or an agent.
The plaintiff relies on the omission in s 92(1)(b) of any reference to an agent to support its submission that s 92(1)(a) entitles a party required to appear before the Commissioner to appear with a non‑legal agent.
The differences in terminology between s 92 and s 112 of the Act make it clear that parliament intended a different representation regime to apply to conciliation proceedings and proceedings in the Tribunal. In the latter case, it is clear that a non‑corporate party has no entitlement to appear by an agent (legal or otherwise) and no party can be represented by an agent without the leave of the Tribunal.
The entitlement to "appear" in s 92(1) and s 112(1) is the statutory source of a party's right to be present and participate in proceedings affecting him, her or it. It reflects the common law right of procedural fairness. However, the common law right to act by an agent is clearly intended to be statutorily abridged. That is obviously the case in relation to the use of a solicitor or counsel in conciliation proceedings (s 92(1)(b)) and a solicitor, counsel and other agent in the Tribunal (s 112(1)(b)). The only issue is the extent to which the right to appear by a non‑legal agent applies in conciliation proceedings.
The language of s 92(1)(a) of the Act favours the defendant's construction. The entitlement is framed in terms of giving a party a choice (or election) of appearing personally or by an agent in conciliation proceedings. It uses the disjunctive "or". It is a right to elect between alternatives. However, the right to elect to appear by an agent, being subject to s 91(2), ceases in the event a party receives a notice to appear under s 91(2).
This result is to be expected. It would be unusual for a party to simultaneously appear in person and appear by an agent. The word "appear" in s 92(1)(a) has the technical meaning of coming before a court or other decision maker as a party, either in person or by an agent, as distinct from "with" an agent. Where a party appears by an agent, the agent is that party's spokesperson. It is for this reason that a construction of s 92 permitting a dual appearance by both a party and its agent breaks down.
Although an agent who appears for a party represents that party, there are other roles short of appearance which a representative may play, such as a supervisory or overseeing role to protect a party as participant. However, s 92(1)(a) is not directed at a representative role short of appearance by an agent.
Indeed, the common law right considered in Ex parte Kay and R v Assessment Committee of St Mary, properly understood, is a right to appear for a party in place of, not in addition to, or with that party. This is clear in the quoted extract from Barton J's judgment in Ex parte Kay set out earlier.
I do not accept the correctness of what was implicit in the plaintiff's submission which was that unless its construction was accepted, the Commissioner did not have the power to permit a party to be represented by an agent (other than a solicitor or counsel).
It is clear that s 92(1) (like s 88(4) and s 112) is intended to codify the boundaries of a party's rights in relation to representation. The purpose of s 92(1)(b) is to make it clear that the common law right to appear by a legally qualified agent is intended to be excluded. However, s 92 is not intended to be a codification of the Commissioner's power to otherwise regulate and control its procedures which would include the power to permit a person to be represented by a non‑legally qualified agent: (see Australian Securities Commission v Bell (1991) 104 ALR 125 at 139)
Finally, it is necessary to make it clear that a party's right to appear by an agent in conciliation proceedings is only excluded in relation to the occasion the subject of a notice under s 91(2) and not to other aspects of conciliation proceedings.
It follows from these reasons that on a proper construction of s 91 and s 92 of the Act that:
(a)a party who receives a notice under s 91(2) of the Act must appear before the Commissioner and is not entitled to appear by (or with) an agent;
(b)save for the circumstances referred to in (a) a party is entitled to appear personally or by an agent other than a solicitor or counsel in conciliation proceedings conducted pursuant to s 91 of the Act;
(c)the defendant has a statutory discretion to allow a party who is required to appear before her pursuant to s 91(2) of the Act to be represented at that appearance by a solicitor or counsel;
(d)the defendant's power to regulate and control conciliation proceedings would entitle her to permit a party to be represented by a non‑legal agent in circumstances where no entitlement arises.
In these circumstances it is unnecessary to deal with the question whether the plaintiff would be in breach of s 92(2) of the Act as a result of charging a fee for membership and providing the membership services through paid employees.
For these reasons I propose to dismiss the plaintiff's application. I will hear the parties on the question of costs.
8
0