Commissioner of Corrective Services v Aldridge

[2000] NSWADTAP 5

Appeal Panel

CITATION:	Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5
PARTIES:	APPELLANT Commissioner of Corrective Services, Department of Corrective Services RESPONDENT Richard Aldridge
FILE NUMBER:	999007
HEARING DATES:	14/12/99
SUBMISSIONS CLOSED:	12/14/1999
DATE OF DECISION:	04/18/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Hennessy N (Deputy President); Rees N - Judicial Member; Mooney L - Member
CATCHWORDS:	adequacy of reasons - jurisdiction - leave to extend to the merits - no evidence - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	37 of 1997
DATE OF DECISION UNDER APPEAL:	05/25/1999
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Aazzopardi -v- Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Soulemezis -v- Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Waterhouse -v- Bell (1991) 25 NSWLR 99 Waters -v- Public Transport Corporation (1991) 173 CLR 349 James -v- Eastleigh Borough Council [1990] 2 AC 751 Boehringer Ingelheim Pty Ltd -v- Reddrop [1984] 2 NSWLR 13 Director-General of Education -v- Breen [1982] 2 IR 93 Waters -v- Public Transport Corporation (1991) 173 CLR 349 IW -v- City of Perth (1997) 71 ALJR 943 R -v- Birmingham City Council; ex parte Equal Opportunities Commission [1989] AC 1155 Ardeshirian -v- Robe River Iron Associates (1990) EOC 92-299 Metwally -v- University of Wollongong (1984) EOC 92-030 Rugema -v- Gadsten Pty Ltd t/a Southcorp Packaging (1997) EOC 92-887 State of Victoria -v- McKenna [1999] VSC 310 Turnbull -v- NSW Medical Board [1976] 2 NSWLR 281
REPRESENTATION:	APPELLANT P Menzies QC with T Anderson, barrister RESPONDENT R Beech-Jones, barrister
ORDERS:	1.Appeal on error of law allowed.; 2.Grant leave for the appeal to extend to a review of the merits of the appealable decision.; 3.Set aside the decision and orders made by the Equal Opportunity Division of the Tribunal on 25 May 1999.; 4.In place of that decision and orders, and subject to paragraph 5 of these orders, order that the complaints of discrimination on the grounds of race and disability be dismissed.; 5. That part of the decision of the Tribunal which deals with that portion of the complaint of racial discrimination which makes allegations of abuse directed by Mr Woodham to the Complainant at a meeting on 23 August 1995 be reviewed on the merits.; 6. The parties be afforded the opportunity to make submissions to this Appeal Panel concerning the final orders (if any) which should be made in relation to the complaint of victimisation.; 7. The matters referred to in paragraphs 5 and 6 of these orders be relisted for hearing before this Appeal Panel.; 8. Matter to be relisted for Directions before the presiding member of the Appeal Panel on a date to be fixed by the Registrar.; 9. No order as to costs.

REASONS FOR DECISION

Introduction

1 This is an appeal by the Commissioner of Corrective Services (the Commissioner) from a decision of the Equal Opportunity Division of the Tribunal made on 25 May 1999. The Tribunal’s decision was that the Commissioner had discriminated against Mr Aldridge, on the ground of race in the course of his employment. The Tribunal made the following orders:

1. That the Respondent pay to the applicant the sum of ten thousand dollars ($10,000.00) damages for injury to feelings, distress, mental anguish and suffering, stress and anxiety and loss of career prospects and development opportunities.
2. That each party pay their own costs.
3. That the Respondent restore the Applicant to a position within the Department of Corrective Services where the Applicant will have direct contact with indigenous people and in accordance with his Public Service grading.

2 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal “on any question of law.” With leave the appeal may extend to a review of the merits of the appealable decision.

History of the proceedings

3 Mr Aldridge lodged a complaint with the Anti-Discrimination Board on 25 March 1996. This complaint alleged that the Department had discriminated against him on the grounds of race and disability and that he had been the subject of victimisation in employment. The crux of Mr Aldridge’s complaint to the Board appears in a Complaint Summary Document prepared by the President of the Anti-Discrimination Board (the President) when the matter was referred to the Tribunal. Paragraph 1 of that summary states that Mr Aldridge alleges that:

He is Aboriginal and holds an Aboriginal-identified position in the Department of Corrective Services. While in the Aboriginal Resource Unit Mr Aldridge was the Policy and Project Officer. He alleges that he has been victimised because he has identified systemic racial discrimination within the Department’s processes, and because he has complained about them to the Department and the Minister who was responsible. He alleges that he also experienced racial discrimination because of his Aboriginality and disability discrimination because of his back injury.

4 The Commissioner responded to this complaint by denying that there had been any breach of the Anti-Discrimination Act 1977 (the Act) in relation to Mr Aldridge. A conciliation conference was held on 3 December 1996 but the matter was not resolved. The President declined the complaint as lacking in substance on 28 February 1997. Mr Aldridge exercised his right under the Act to have the matter referred to the Tribunal for hearing.

5 In his Points of Claim Mr Aldridge alleged race discrimination. Some of the details of this claim were that:

• his position was deleted and he was not transferred to a substantially similar position when one was available;
• he was placed in a supernumerary position;
• Mr Woodham (Assistant Commissioner) abused him on three separate occasions; and
• he did not receive a response to correspondence addressed to Mr Woodham.

6 In its Points of Defence the Commissioner denied that he had subjected the Mr Aldridge to discrimination or victimisation within the meaning of the Act and submitted that the complaints should be dismissed because they were frivolous, vexatious, misconceived and lacking in substance.

Disability complaint

7 Although Mr Aldridge alleged disability discrimination in the Points of Claim, this complaint was withdrawn during the course of the hearing before the Tribunal. The Tribunal did not make any orders dealing with this complaint although it referred to provisions of the Act concerning disability discrimination in its Reasons for Decision. The Tribunal should have invoked section 111 (1A) of the Act which permits it to dismiss a complaint when satisfied that the person who made the complaint does not wish to proceed. In the circumstances we believe it appropriate to order that the complaint on the ground of disability be dismissed.

Victimisation complaint

8 The Tribunal did not make any final order in relation to the complaint of victimisation. In his Points of Claim, Mr Aldridge alleged that he was victimised because he wrote a report to the Commissioner complaining of racial discrimination against three Aboriginal inmates.

9 Mr Aldridge gave evidence about his allegations of victimisation at the hearing. (See for example, transcript of 6 April 1998 at p 26.) In final submissions to the Tribunal, Mr Aldridge’s counsel alleged that “The complainant was also victimised as a result of his report of 22 December 1993 into the removal of Messrs Glass, Pitt and Kirby.” The Department addressed the issue of victimisation in its written submissions at paragraphs 12 and 38.

10 The Tribunal quoted section 50 of the Act (the section relating to victimisation) at the beginning of the decision, but there is no further mention of this complaint in the decision. Neither of the parties raised the issue of the victimisation complaint before the Appeal Panel. In these circumstances it is not appropriate for us to make orders in relation to the victimisation complaint at this stage. However, as we have decided to extend this appeal to the merits of one part of Mr Aldridge’s race discrimination complaint, this hearing will provide the parties with an appropriate opportunity to make submissions to the Tribunal on this issue.

11 The Notice of Appeal sets out 15 grounds all of which were relied on at the hearing apart from ground 12. In his written submissions dated 8 November 1999, the Commissioner grouped the grounds of appeal into four categories.

12 The first category included the following grounds:

The Tribunal erred in law in that there was no evidence to support its findings, conclusions and orders.
The Tribunal erred in law in that there was no logically probative material to support its findings, conclusions and orders.
The Tribunal erred in law in that it failed to afford the Appellant procedural fairness.

13 The Commissioner’s first and most fundamental submission was that there was no evidence, or no logically probative material, to support the Tribunal’s finding that Mr Aldridge had been discriminated against on the ground of his race. The Commissioner’s arguments supporting these submissions are set out in paragraphs 12 to 26 of his submissions.

14 The second category of grounds relied on by the Commissioner were that:

The Tribunal erred in law in that it failed to give any or any proper consideration to the evidence adduced in the proceedings and/or the submissions made by the appellant.
The Tribunal erred in law in that it failed to give proper reasons for its decision.
The Tribunal erred in law in that it failed to give proper reasons for its findings on material questions of fact, its understanding of the applicable law and/or the reasoning processes that led it to the conclusions that it made.
The Tribunal erred in law in that it failed to take relevant considerations into account.
The Tribunal erred in law in that it constructively declined to exercise its jurisdiction in that it failed to determine the Complainant’s complaint according to law.

15 The arguments supporting these submissions are at para 27-43 of the Commissioner’s submission.

16 The third category of errors addressed by the Commissioner in its submission was as follows:

The Tribunal erred in law in that its reasons are bad in law, unintelligible and/or inadequate.
The Tribunal erred in law in that it gave contradictory reasons for its findings and/or conclusions.
The Tribunal erred in law in that it took account of irrelevant considerations.
The Tribunal erred in law in that, notwithstanding that findings of fact made by it are necessarily outside the statutory descriptions in ss 7 and 8 of the Act, it made findings and/or conclusions to the contrary.
The Tribunal erred in law in that it held that the Appellant was required, by reason of the Public Sector Management Act 1988 , to offer the Complainant a position in the Indigenous Services Unit.

17 The reasons supporting these grounds are set out in paras 44-64 of the Commissioner’s written submissions.

18 The final category of error relied on by the Commissioner was that:

The Tribunal erred in law in that its decision is so unreasonable that no reasonable tribunal could have come to it.

19 The Commissioner also sought the Appeal Panel’s leave for the appeal to extend to a review of the merits of the decision in accordance with s 113(2)(b). The Commissioner advanced two reasons in support of its appeal on the merits. First, the Commissioner repeated the 15 grounds advanced in support of the appeal on questions of law and, secondly, it alleged that “the Tribunal’s findings, conclusions and orders do not accord with and are contrary to the evidence adduced in the proceedings.”

Mr Aldridge’s submissions

20 In their written submissions, counsel for Mr Aldridge outlined the evidence and the Tribunal's findings which they say supports an inference that the less favourable treatment was "on the ground" of race. The following nine points were made:

The respondent was an Aborigine who was the most "senior, most experienced, identified Aboriginal person in the Department of Corrective Services in the whole of NSW" and his commitment to his job was not questioned nor was his competency;
The complainant was outspoken in his views, especially in relation to matters affecting Aboriginal persons and departmental policies;
Prior to the relevant events the subject of the Tribunal's decision, the respondent was employed to develop, set up and work in the Aboriginal Resources unit (the ARU) of the department;
Between December 1995 and January 1996, while the respondent was on stress leave owing to a back complaint, the ARU was abolished and replaced by the Indigenous Service Unit (ISU);
Following the respondent's return to work on 26 February 1996 he was advised of the relevant change, told that he would be no longer working in the ARU and not given the opportunity to apply for positions in the ISU and instead told that he would be working elsewhere;
It appears that there was a position in the ISU which was at the same grade and level as the position that the respondent held in the ARU, but he was not given the opportunity to apply for it. It appears at the very least, the usual practice was for persons such as the respondent to be advised prior to the advertising of such a position in the ISU;
Thereafter the respondent sought to agitate in relation to obtaining a position in the ISU and pursued a complaint concerning his treatment which was to no avail. In particular, it appears that the appellant directed one of his officers to retract an offer that he had previously made for the respondent to be interviewed for a position in the ISU;
Having regard to the rejection of Mr Woodham's evidence there was no justification for his treatment of the respondent;
Further, the respondent was during 1995 the subject of humiliating abuse from the appellant, including abuse at a meeting in August 1995.

21 In relation to the meeting in August 1995, counsel for Mr Aldridge also relied on the evidence of Mr Mulvany who was present at the meeting. Mr Mulvany said that Mr Aldridge was "singled out, I believe, because of his Aboriginality, because of his position representing he other Aboriginal people in that team, in that group."

22 Mr Aldridge’s counsel summarised his submission as follows:

Leaving aside Mr Mulvany's evidence it is submitted that there was material upon which the Tribunal could find that the treatment of the respondent received was on account of his race, including the circumstances surrounding the level of differential treatment he received (see above), particularly the departure from what was standard practice in relation to employees in his position, the personal animosity of the appellant towards him coupled with his obvious Aboriginality, the outspoken views he pronounced in relation to Aboriginal issues vis a vis the department generally and the absence of any justification for his removal. Thus, leaving aside Mr Mulvany's evidence, it is submitted that these matters were more than sufficient to enable the Tribunal to draw the inference that the respondent's Aboriginality was a factor in the treatment he received. Moreover, Mr Mulvany's evidence was itself material from which the respondent could draw that conclusion. It was material confirmatory of what the other objective facts found by the Tribunal pointed to.

23 The Commissioner’s submission on this issue was that there was no evidence that he had discriminated against the complainant on the ground of race in any of the ways found by the Tribunal. These were identified by the Commissioner as being the matters referred to in paragraph 51 of the Tribunal’s Reasons for Decision:

The correspondence he [Mr Aldridge] sent to the Assistant Commissioner Woodham was not responded to.
He [Mr Aldridge] was abused by Assistant Commissioner Woodham in front of other staff members of the Aboriginal Resources Unit.
He [Mr Aldridge] was removed from his position within the Aboriginal Resources unit and not put in a substantially similar position when a grade 7/8 position was created or established in the Aboriginal Resources Unit renamed the Indigenous Services Unit."

24 In relation to the correspondence, the Commissioner submitted that:

Not only was there no evidence that the complainant's correspondence had been treated differently to that of persons of another race, the evidence clearly demonstrated that there was no truth to the Complainant’s allegation that he received no response to his correspondence. The evidence also demonstrated that Mr Woodham communicated with the Complainant on both a formal and informal basis and that, in fact, Mr Woodham initiated conversations with the Complainant.
The Tribunal makes no reference to the extensive evidence of Mr Woodham with respect to the alleged failure to respond to the Complainant's correspondence (or the Appellant's submissions with respect to the matter). This is but one example of the Tribunal's failure to properly consider the evidence of the Appellant's submissions.

25 In relation to the findings of abuse, the Commissioner stated that:

A complainant's subjective opinion does not provide any support for an allegation of discrimination. The subjective opinion of a witness is no different. The evidence of Mr Mulvany upon which the Tribunal relied represented no more than mere opinion. . . . The Appellant submits that Mr Mulvany was not a reliable witness. However, if the Tribunal considered Mr Mulvany to be reliable, it was impossible for it to conclude that, at that meeting, Mr Woodham treated the Complainant differently to how he treated the persons of another race who were present at that meeting - see Mr Mulvany's evidence of the comments that Mr Woodham made to Ms Sutherland and Mr Mulvany.

26 In relation to the findings about removal from the ARU and failure to be appointed to the IDS, the Commissioner stated (at para 26 of his submission) that:

There was . . .no evidence that the decision with respect to the deletion of the Complaint's position in the ASU /not appoint him to a position in the Indigenous Services Unit were made on the ground of his race. Indeed, the evidence clearly demonstrated that the decisions were made for other reasons.

Correct respondent

27 The employer against whom the complaints of unlawful discrimination were first made was the Department of Corrective Services. The President of the Anti-Discrimination Board, when referring the complaints to the Tribunal, named the respondent as the Commissioner, Department of Corrective Services. Mr Aldridge, in his Points of Claim, referred to the respondent by the same name. The respondent in his Points of Defence referred to himself as the Commissioner of Corrective Services. The Tribunal used the same description for the respondent in its Reasons for Decision. We note that section 4B(1) of the Act provides that, for the purposes of the Act in relation to employment in a Department, the employer is to be considered as “a reference to the relevant Department Head.” As no point has been taken by either party about the correct description of Mr Aldridge’s employer we have accepted the appellant’s description: the Commissioner of Corrective Services.

28 Section 4B(2) is also relevant. It provides:

Anything determined or done with respect to any matter concerning any such employment by an officer or employee in any Department, in the Police Service or in the Education Teaching Service who is authorised to determine and do things in that respect is taken to have been determined or done by the Department Head, Commissioner of Police or Director-General of the Department of School Education, respectively.

29 Section 4B of the Act did not come into force until 4 July 1997. Mr Aldridge’s initial complaint was made to the President on 25 March 1996. The hearing was conducted before the Tribunal and the Appeal Panel, on the basis that the Commissioner of Corrective Services was the appropriate employer and respondent to the complaints and that the Commissioner was responsible for the actions of Departmental officers in relation to Mr Aldridge. There was no reference to section 53 of the Act which deals with the circumstances in which an employer can be held responsible for the actions of his or her employees. Consequently we propose to deal with this appeal on the basis that all of the acts performed by officers of the Department which have been alleged by Mr Aldridge to constitute acts of unlawful discrimination are to be considered as acts done by the Commissioner.

Approach to determining this appeal

30 As we indicated earlier, the Commissioner’s first and most fundamental challenge to the Tribunal’s decision was that it made a number of findings which were not open on the evidence. Before considering this complex exercise, however, we believe that the logical way to approach this appeal is first to determine whether the Tribunal correctly stated and applied the relevant law. Although the Commissioner’s appeal grounds are expressed in general terms, ground number 5 alleges that there was legal error in the Tribunal’s “understanding of the applicable law and/or the reasoning processes that led it to the conclusions that it made.”

31 Our approach to determining this appeal is supported by authority. In Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Kirby P (as he then was) described the history of appeals and the proper approach to the determination of appeals. While Kirby P was in the minority in the ultimate decision in Azzopardi his general comments concerning appeals are of considerable assistance to bodies such as this Appeal Panel.

32 Kirby P stated that courts and tribunals typically follow a three stage process when reaching a decision: (1) fact finding; (2) rule-stating; and (3) rule application. His Honour then stated that, “The most typical error of law, attracting the appeal court’s corrective jurisdiction occurs at the ‘rule stating’ stage.” (at p 150) The majority of judges in Azzopardi, Glass and Samuels JJA, agreed with Kirby P’s characterisation of the decision making process of courts and tribunals and the consequences of misstating the law. They disagreed with him on the narrower issue of when an error of fact could constitute an error of law.

33 McHugh JA (as he then was) spoke generally about the decision making processes of courts and tribunals in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. He stated (at p 278):

When parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles which govern their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles.

34 In this case we have concluded that the Tribunal incorrectly stated the relevant law. It also incorrectly applied that part of the law which it stated correctly. Both of these errors infected the Tribunal’s fact finding processes because the Tribunal did not pose and answer the questions of fact which it needed to determine in order to decide the case correctly.

Case involves direct discrimination

35 The NSW Act, like other equal opportunity statutes, deals with both direct and indirect discrimination. These terms are considered and the relevant cases discussed in C. Ronalds, Discrimination Law and Practice (Federation Press, Sydney, 1998) at pp 26-46. In paragraph 5 of the Points of Claim, counsel for Mr Aldridge makes a passing reference to that part of section 7(1)(c) of the Act which deals with indirect discrimination. Despite this it is quite clear from the written submissions to the Tribunal, and from the submissions made to the Appeal Panel by Mr Beech-Jones, who appeared for Mr Aldridge, that Mr Aldridge was relying exclusively on allegations of direct discrimination. The Tribunal certainly decided the case on that basis.

36 The key finding of the Tribunal is set out in paragraph 48 of its Reasons for Decision where it states:

The evidence in this case substantiates in the view of the Tribunal that on the balance of probabilities, the Respondent discriminated against the Complainant on the ground of race in that it treated the Complainant less favourably than in the same circumstances, or in circumstances which were not materially different, than it would have treated a person of a different race.

37 This finding concerning the ultimate issue in the case incorporates an incorrect statement of the law. It concludes that “the Respondent discriminated against the Complainant on the ground of race” but wrongly states the law to be applied to reach that conclusion for it omits one element of the statutory definition of discrimination on the ground of race.

Definition of direct race discrimination

38 Section 8 of the Act is the substantive provision in relation to race discrimination in employment. That section makes it “unlawful for an employer to discriminate against a person on the ground of race” in the circumstances described in sub-sections (1) and (2). Section 7 defines the words “discriminates . . . on the ground of race”. It states:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

39 This definition of discrimination on the ground of race is not expressed with great clarity because the words “on the ground of race” are used twice. When first used the words are introductory; they inform the reader that what is being defined is discrimination “on the ground of race.” When next used the words form part of the definition of discrimination on the ground of race. That definition includes the words: “if, on the ground of the aggrieved person’s race . . .” These words incorporate within the definition of racial discrimination an element of causation. The precise test to be adopted in order to determine whether the requisite degree of causation has been established is considered in more detail at paragraphs 47-53.

40 In the present case, because of its apparent misreading of section 7, the Tribunal overlooked the question of causation in its statement of the law. The reasoning which follows the Tribunal’s statement of the law (see paragraphs 49-57 of the Reasons for Decision) reveals that this omission was not the result of clerical error or oversight for, subject to the matters which we discuss at paragraph 63, the Tribunal did not analyse any relevant evidence or make any findings of fact concerning causation. The failure of the Tribunal to properly state and apply the relevant law in relation to the issue of causation is an error of law of such significance that the decision and orders under appeal must be set aside.

41 The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts. While there has been some confusion and inconsistency there is clear authority to guide us. In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):

The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment one of those mentioned in (a), (b) or (c)?

42 In Waters v Public Transport Corporation (1991) 173 CLR 349 Dawson and Toohey JJ stated (at p 392):

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

43 In the leading House of Lords decision, James v Eastleigh Borough Council [1990] 2 AC 751, Lord Goff stated:

The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman?

44 In our opinion these statements clearly express the relevant law and should have led the Tribunal to pose for itself the following question. Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?

45 It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.

Differential treatment

46 For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race (in this case the treatment of a non-Aboriginal person) and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same circumstances as the complainant or in circumstances which were not materially different. As Mahoney JA observed in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 when discussing this component of the element of direct discrimination:

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is “less favourable” than in the latter.

Causation

47 If the Tribunal had satisfied itself that differential treatment, as we have described it, had occurred, it should then have considered the issue of causation. When considering causation, it is the grounds or the reasons for a respondent’s action, as opposed to his or her intentions or motives for so acting, which are relevant. In Director General of Education v Breen [1982] 2 IR 93 at 95 Street CJ stated:

To amount to discriminatory conduct prohibited by the Act the characteristic which will provide the ground must have a proximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative effect upon the decision to commit or the committing of the act of discrimination.

48 McHugh J used similar language in Waters v Public Transport Corporation (1991) 173 CLR 349 at 400-401 when discussing the definition of direct discrimination in the Victorian Equal Opportunity Act 1997:

The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against . . . The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of the act. .

49 Kirby J spoke more broadly, but in a similar vein, in IW v City of Perth (1997) 71 ALJR 943 at 975 when discussing the definition of direct discrimination in the Western Australian Equal Opportunity Act 1984:

. . . the weight of authority supports the proposition that it is unnecessary for a complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose . . . It would subvert the achievement of the purposes of the Act if it were necessary for a complainant to establish that the alleged discriminator intended, or had the motive, to discriminate. All that need be shown is that the alleged discriminator has acted “on the ground of” relevantly, impairment. That involves an objective characterisation of the discriminator’s “ground” for its conduct for which subjective intention must be relevant but is not decisive.

50 The test of causation to be employed when considering a case of direct discrimination is also influenced by section 4A of the Act which provides that:

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.

51 While this section is clearly worded and therefore requires little elaboration, two points may usefully be made. First, it is surprising that s 4A uses the words “reason” and “reasons” whereas all of those sections of the Act which define unlawful discrimination, such as section 7, use the word “ground” when dealing with the issue of causation. The wording of section 4A (which was inserted in the Act in 1994) is very similar to that employed in section 18 of the Racial Discrimination Act 1975 (Cth) (which was inserted in 1990) and section 8 of the Sex Discrimination Act 1984 (Cth) (which was inserted in 1992). In the Commonwealth statutes the phraseology used to define unlawful discrimination is different from that employed in the NSW Act. It may well have been the case that these differences were overlooked when the decision was made to base section 4A of the NSW Act on the provisions in the Commonwealth statutes. McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 400-401 and Kirby J in IW v City of Perth (1997) 71 ALJR 943 at 977-978 treat the words “reason” and “grounds” as synonyms when considering the definition of direct discrimination in the equal opportunity legislation of other states. That is the way in which we believe the words should be considered when dealing with direct discrimination in the NSW Act.

52 Secondly, section 4A throws doubt on the usefulness in NSW of the “but for” test of causation in cases of direct discrimination. The “but for” test was formulated by Lord Goff in R v Birmingham City Council; ex parte Equal Opportunities Commission [1989] AC 1155 at 1194 and further developed by him in James v Eastleigh Borough Council [1990] 2 AC 751 at 772-774. While Kirby J indicates his support for the ‘but for’ test in IW v City of Perth (1997) 71 ALJR 943 at 978 and Toohey J in the same case (at 959) viewed it as having some benefit, we believe that it may distort the meaning of section 4A. Section 4A declares that a person can be held liable for an act done for multiple “reasons” or “grounds” where one of those reasons or grounds is a proscribed one such as race or sex. The section goes on to provide that it is unnecessary to prove that the proscribed “reason” or “ground” “is the dominant or a substantial reason for doing the act.” This test is inconsistent with the “but for” test which requires the complainant to prove that the less favourable treatment would not have occurred without the presence of that ground or reason. Section 4A only requires the complainant to prove that the proscribed ground or reason was one of the factors which contributed to the less favourable treatment. These tests are, in our view, inconsistent.

53 The “but for” test may have been developed in the two House of Lords cases to which we referred because the Sex Discrimination Act 1975 (UK) does not contain a provision similar to section 4A of the NSW Act. However, we do not have to resolve this issue to determine this appeal because the Tribunal failed to consider the question of causation at all.

Tribunal’s application of the law in relation to differential treatment to the impugned acts of the Commissioner

54 The Tribunal correctly identified what we have described as the differential treatment component of the test of direct discrimination. However it did not apply that test to the facts. What the Tribunal should have done was determine whether each impugned act of the Commissioner fell within the relevant substantive provision of the Act - in this case, section 8. Having done so the Tribunal should then have determined whether in respect of each impugned act, the Commissioner treated Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances or in circumstances which were not materially different.

55 It is difficult to determine which acts of the Commissioner were found by the Tribunal to constitute unlawful discrimination on the ground of race. At paragraph 49 of its Reasons for Decision the Tribunal stated:

Referring once more to s 4(a) [sic] of the Act, the Tribunal is of the opinion that the removal of the complainant from the Unit previously referred to and the admission by the Respondent to the effect that the Complainant was not to work with persons of his own race, constituted an act done for two or more reasons, and substantiates the element of s 4(a) of the Act. Similarly, the Respondent unlawfully discriminated against the Complainant on the ground of race in arrangements it made for the purpose of determining who should be offered employment and the terms of (sic) which such employment was offered pursuant to s 8 of the Act. Similarly the Tribunal considers that inter alia s 8(2) par(a), par (b) and par (c) are applicable to this case and that the Complainant was subjected to a detriment which was substantiated by medical evidence called by him and other evidence given during the course of the proceedings.

56 At paragraph 52 of the its Reasons for Decision the Tribunal stated:

Also, the evidence established that the Complainant was discriminated against in breach of s 7 and 8 of the Act in three ways:
1. The correspondence he sent to the Assistant Commissioner Woodham was not responded to.

2. He was abused by Assistant Commissioner Woodham in front of other staff members of the Aboriginal Resources Unit.
3. He was removed from his position within the Aboriginal Resources Unit and not put in a substantially similar position when a grade 7/8 position was created or established in the Aboriginal Resources Unit renamed the Indigenous Services Unit."

57 The reference in paragraph 49 of the Tribunal’s Reasons for Decision to “the arrangements it made for the purpose of determining who should be offered employment” and “the terms of (sic) which such employment was offered” we take to be the act of the Commissioner, referred to in sub-paragraph 3 of paragraph 52, in disbanding the Aboriginal Resources Unit, abolishing the position of Mr Aldridge within that Unit and not appointing him to a position within the new Indigenous Services Unit.

58 These actions of the Commissioner would appear to fall within paragraphs (a), (b) and (c) of section 8(2) of the Act. Whether they constitute unlawful discrimination on the ground of race involves an application of the law, as we have described it in paragraphs 41-53, to material findings of fact. The only findings of fact which the Tribunal made in relation to these actions of the Commissioner are those set out in paragraphs 53-57 of the Reasons for Decision:

53 The Complainant was removed from the principal Aboriginal Policy making Unit within the Department and this limit on the benefit associated with employment was a breach of s 8(2) par (b) or a subjection of the Complainant to a detriment within s 8(2) par (c) of the Act.
54 There was clearly a position which was substantially the same position as the Complainant was occupying in the renamed Indigenous Services Unit (evidence of Mr Woodham 11 August 1998) and see evidence of Elizabeth Moye 20 May 1998 at 27 - 28.
55 The Tribunal agrees with the submission that the Complainant was removed from his position because he made his views on matters known from an Aboriginal cultural standpoint which was not welcomed by the Department and specifically was not welcomed by Assistant Commissioner Woodham.
56 The Complainant denied ever telling anybody that he would not work with Ms Selfe and the evidence is that she was appointed to her position on or about 6 November 1995.
57 It was significant in the evidence that Mr Woodham referred in his second statement to a meeting with Ms Sutherland and the Complainant and that Mr Woodham states that the Complainant said he would not work with Ms Selfe. This appears to be spurious and the Tribunal notes that he made no mention of this conversation in his first statement and concludes that he rather relied on hearsay as to statements allegedly made by the Complainant about not working with Ms Selfe.

59 These paragraphs do not contain any findings of fact in relation to the issues of whether Mr Aldridge was treated less favourably than a non-Aboriginal person was treated, or would have been treated in the same or similar circumstances and, if such less favourable treatment occurred, whether it was done on the ground of Mr Aldridge’s race. We acknowledge that it would have been difficult for Mr Aldridge to prove differential treatment in the circumstances of this case because all the relevant positions in the Aboriginal Resources Unit and the Indigenous Services Unit were occupied by Aboriginal persons. For example, the Tribunal could not have used the position of Director of the Indigenous Services Unit as the actual or hypothetical comparator, as this was a position for Aboriginal people only. It was filled by an Aboriginal person and it was viewed by the Commissioner to be a “designated position”. (We take this to mean that the Department regarded the position as falling within section 14(d) of the Act which allows an employer to determine that a job will be open to persons of a particular race only when the position involves “providing persons of a particular race with services for the purposes of promoting their welfare where those services can most effectively be provided by a person of the same race.”)

60 Perhaps the most useful point of comparison would have been with an actual or hypothetical person heading another unit within the Department where that unit was disbanded and another similar unit created.

61 Despite these difficulties, the Act requires that an actual or hypothetical comparison be undertaken in every case of alleged direct discrimination. (See the remarks of Mahoney JA in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 reproduced at paragraph 46) The Tribunal did not undertake such a comparison in this case.

Tribunal’s application of the law in relation to causation

62 As we indicated at paragraph 36-40, the Tribunal failed to articulate the causation component of the test for determining whether direct discrimination had occurred. The issue of causation should have been considered in relation to each impugned act of the Commissioner if the Tribunal had found that the act fell within section 8 of the Act and if the Tribunal had found that Mr Aldridge had been treated less favourably than a non-Aboriginal person was treated, or would have been treated in the same circumstances or in circumstances which are not materially different. Only then does the issue of causation arise for consideration.

63 In this instance the Tribunal did make a finding of fact in relation to the issue of causation when it concluded that “the complainant was removed from his position because he made his views on matters known from an Aboriginal cultural standpoint which was not welcomed by the Department.” However in the absence of a finding that Mr Aldridge was treated less favourably than a non-Aboriginal person was treated, or would have been treated, in the same or similar circumstances, this finding of causation is not sufficient to allow the Tribunal’s conclusion in relation to the loss of Mr Aldridge’s position to stand.

64 We also question whether an employer who takes action against an employee because the employee “made his views on matters known from an Aboriginal cultural standpoint which was not welcomed” has acted “on the ground of race.” It could be argued that to so act falls within the “extension” provisions of section 7(2), which declare that an act is done on the ground of a person’s race if it is done on the ground of “a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race”. Alternatively, it could be argued that it is discrimination on the ground of political opinion (a ground not covered by the Act), rather than on the ground of race, to act in this manner. It is not necessary for us to decide this point in view of our conclusion that the Tribunal failed to make any findings as to whether or not Mr Aldridge was the subject of differential treatment.

Failing to respond to Mr Aldridge’s correspondence

65 The Tribunal’s conclusion that “the correspondence he (Mr Aldridge) sent to the Assistant Commissioner Woodham was not responded to” constitutes unlawful discrimination on the ground of race is not sustainable for similar reasons to those we have advanced in relation to the Tribunal’s conclusion concerning Mr Aldridge’s removal form his position in the Aboriginal Resources Unit.

66 For the purposes of this analysis we will accept the Tribunal’s finding of fact concerning Mr Woodham’s failure to reply to Mr Aldridge’s correspondence but we note that this finding was challenged on appeal by counsel for the Commissioner. In view of our conclusion about this matter it is unnecessary to determine whether this finding of fact was open to the Tribunal. At no point did the Tribunal identify which particular substantive provision of the Act (that is, which part of s 8) may have been breached by any failure of Mr Woodham to reply to correspondence from Mr Aldridge. The only relevant provision appears to be that part of section 8(2)(c) which refers to “subjecting the employee to any other detriment.” It may be stretching those rather general words beyond their natural limit to suggest that by failing to answer correspondence the employer was subjecting the employee to a detriment. While it is unnecessary for us to decide this point because of the failure of the Tribunal to make findings in relation to differential treatment and causation it is an issue which the Tribunal should have addressed.

67 At no stage did the Tribunal ask itself and determine whether Mr Woodham’s failure to answer Mr Aldridge’s correspondence amounted to the Commissioner treating Mr Aldridge, on the ground of his race, less favourably than the Commissioner treated, or would have treated, a non-Aboriginal in the same circumstances or in circumstances which were not materially different. For the reasons we have given earlier the Tribunal’s conclusions in relation to unanswered correspondence cannot stand.

Abuse of Mr Aldridge

68 The Tribunal also concluded that Mr Aldridge “was abused by Assistant Commissioner Woodham in front of other staff members of the Aboriginal Resources Unit” and that this constituted unlawful discrimination on the ground of race. The Tribunal did not identify or describe the specific incident (or incidents) which caused it to conclude that Mr Woodham abused Mr Aldridge in front of other staff members of the Aboriginal Resources Unit. On the basis of the Tribunals’ reasons as a whole we have concluded that it was referring to a meeting which occurred on 23 August 1995. At that meeting the Tribunal found that Mr Woodham said to Mr Aldridge, “If you do not like working here you can get fucked and go somewhere else.”

69 The Tribunal did not clearly identify which particular substantive provision of the Act (that is, which part of section 8) may have been breached by the use of this language. The relevant findings of the Tribunal in relation to this incident (at paragraph 51 of the decision) were:

. . . the Tribunal forms the view that he did not like the Complainant not only as a result of the Complainant's perpetual entreaties to Mr Woodham for assistance in the Aboriginal Resources Unit, but that he treated him detrimentally at the meeting held where certain language was used by Mr Woodham to the Complainant. This treatment occurred when the complainant was in the company of his peers, which greatly upset the Complainant and in the view of one witness, who was a reliable witness, such language was used to suggest that it was racially motivated.

70 It appears that by use of the words “he treated him detrimentally” the Tribunal was referring to section 8(2)(c) of the Act which, as we have noted, refers to “subjecting the employee to any other detriment.” We believe that subjecting an employee to the abuse found to have occurred in this case could fall within section 8(2)(c) of the Act.

71 In the fields of employment and the provision of educational services there are a number of cases in which racially based abuse has been held to constitute unlawful discrimination. (See, for example Ardeshirian v Robe River Iron Associates (1990) EOC 92-299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd t/a Southcorp Packaging (1997) EOC 92-887.) Abuse directed to an employee by an employer, even if it has no racial content, can constitute unlawful discrimination on the ground of race if all the necessary elements of this finding can be made out.

72 In this case we are satisfied that the abuse found by the Tribunal to have occurred was an act of “subjecting the employee to any other detriment” within the meaning of section 8(2)(c). We note that while counsel for the Commissioner attacked the Tribunal’s ultimate findings in relation to this incident it was open to the Tribunal to conclude that language to the effect of that which we have set out in paragraph 68 was in fact used by Mr Woodham.

73 Despite the fact that this incident falls within the relevant substantive provisions of the Act we have concluded that the Tribunal’s ultimate findings in relation to this matter must again be set aside for the Tribunal failed to ask itself and determine whether Mr Woodham’s abuse amounted to the Commissioner treating Mr Aldridge, on the ground of his race, less favourably than the Commissioner treated, or would have treated, a non-Aboriginal person in the same or similar circumstances. No differential treatment analysis was undertaken and the Tribunal’s findings on the question of causation are equivocal and incomplete. The Tribunal should have determined whether Mr Woodham did abuse, or would have abused, non-Aboriginal persons in the same or similar circumstances. If Mr Woodham abused everyone, regardless of their race, the Tribunal would have been forced to conclude that while his employment practices may have fallen well short of the ideal, they did not constitute unlawful racial discrimination.

74 Even if the finding was that Mr Woodham did treat Mr Aldridge less favourably than he did treat or would have treated other Departmental employees in similar circumstances, the Tribunal should have gone on to determine the question of causation. That question is whether the abuse was directed at Mr Aldridge on the ground of his race.

75 The Tribunal found that it was the view of one witness (which we take to be a reference to Mr Mulvany) that “such language was used to suggest that it was racially motivated.” This is not sufficient evidence on which to base a conclusive finding in relation to the issue of causation. The Tribunal should have reached its own conclusion after assessing all of the relevant evidence, whether it was satisfied that Mr Woodham acted as he did on the ground of race. In the language used by Street CJ in Director -General of Education v Breen [1982] 2 IR 93 at 95 it was necessary for the Tribunal to conclude that Mr Aldridge’s race had “a causally operative effect” upon Mr Woodham’s decision to abuse Mr Aldridge. Without this conclusion it was not open to the Tribunal to find that the Commissioner had discriminated against Mr Aldridge on the ground of his race. Consequently, for the reasons we have given, the Tribunal’s conclusions in relation to the abuse directed to Mr Aldridge by Mr Woodham cannot stand.

76 The Tribunal also appears to have found that the Commissioner contravened section 7(1)(b) of the Act. This sub-paragraph is another limb of the definition of discrimination on the ground of race. The Tribunal stated that:

Similarly, the Tribunal considers that the Respondent segregated the Complainant from persons of his own race by removing him from the Aboriginal Resources Unit and not offering him a position in the Indigenous Services Unit where such a position was available for such an appointment.

77 If in making this statement the Tribunal did find that the Commissioner breached section 7(1)(b) of the Act it was in error for the following reasons. First, section 7(1)(b) is a definitional provision. The Tribunal should have determined whether the act of the Commissioner fell within the relevant substantive provision (that is section 8 of the Act) and then decided whether the act constituted discrimination on the ground of race as defined by section 7(1)(b). Secondly, section 7(1)(b) provides that it is discrimination on the ground of race, if, on the ground of race, the perpetrator “segregates the aggrieved person from persons of a different race . . . .” In this case if there was any segregation of Mr Aldridge it was from persons of his own race and not from persons of a different race. Thirdly, the issue of causation was not considered. There was no finding that any segregation of Mr Aldridge was undertaken on the ground of race. Consequently, for the reasons we have given, the Tribunal’s conclusions in relation to the issue of segregation cannot stand.

78 The Appeal Panel’s powers when determining an appeal on a question of law are set out in section 114 of the ADT Act:

(1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision.
(2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following:
(a) an order affirming or setting aside the decision of the Tribunal (as originally constituted),
(b) an order remitting the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel,
(c) an order made in substitution for an order made by the Tribunal.

79 Counsel for the Commissioner urged us to set aside the decision of the Tribunal and in substitution order that all of Mr Aldridge’s complaints be dismissed. We accept that section 114 of the ADT Act empowers us to make those orders but we must determine whether they are the appropriate orders in this case.

80 The decision and orders of the Tribunal must be set aside. The Tribunal’s failure to correctly state the relevant law and to correctly apply that part of the relevant law which it correctly stated went to the ultimate issue in this case, namely whether the Commissioner unlawfully discriminated against Mr Aldridge on the ground of race.

81 It is a separate issue whether we should make orders in substitution for those made by the Tribunal and dismiss Mr Aldridge’s complaints. To do so we would need to make findings about the facts. Relevant grounds of appeal advanced by the Commissioner are:

(2) The Tribunal erred in law in that there was no evidence to support its findings conclusions and orders
(3) The Tribunal erred in law in that there was no logically probative material to support its findings, conclusions and orders.

82 In a recent Victorian decision State of Victoria v McKenna [1999] VSC 310 Smith J reviewed the authorities concerning the circumstances in which error in the fact finding process may constitute an error of law. We accept the following statement as an accurate statement of the law:

Ultimately, to establish error of law in a finding of fact, the appellants must establish that the finding of fact was not open on the evidence before the Tribunal. If all the relevant primary facts found on the evidence are identified in the reasons for judgment, the question then becomes one of whether the inference in issue drawn by the Tribunal was open on those facts. If the findings of fact relevant to the drawing of the inference are not stated in the reasons but can be established because they were admitted or because they follow as a matter of logic from the Tribunal's reasoning, the question is simply one of whether the inference in issue was open on such facts. Where it is not possible from the reasons or the record of the proceedings to reach a decision as to what competing evidence or primary facts were accepted by the Tribunal, the task for the appellants then become one of establishing that it was not open to the Tribunal to find the facts which were necessary to support the inference that was apparently drawn. In that situation, however, another issue arises - the adequacy of the reasons.

83 The ultimate difficulty in the present case is that the Tribunal made few relevant findings of fact. This occurred, no doubt, because the Tribunal incorrectly stated and incorrectly applied the law. Accordingly it did not turn its attention to the questions of fact which it needed to determine in order to decide whether to uphold or dismiss Mr Aldridge’s complaint. As we have stated at paragraphs 54-75, in relation to every alleged act of unlawful discrimination the Tribunal failed to determine the following essential questions of fact:

(a) whether the Commissioner’s act fell within the relevant substantive provision of the Act, namely section 8

(b) if ‘Yes’ to (a) whether in so acting the Commissioner treated Mr Aldridge less favourably than it treated, or would have treated, a non-Aboriginal person in the same or similar circumstances
(c) if ‘yes to (a) and (b) whether the Commissioner so acted on the ground of race.

84 Consequently it is an arid exercise for us to consider whether the Tribunal made findings of fact which were not open on the evidence or whether it drew inferences which were not open on the facts. However, as we understand the Commissioner’s case, it submits that there was no evidence upon which the Tribunal could have made findings of fact in favour of Mr Aldridge, at least in relation to the matters described in sub-paragraphs (b) and (c) in the preceding paragraph. We believe that this submission is correct except in relation to the abuse directed by Mr Woodham to Mr Aldridge at the meeting on 23 August 1995.

85 It was open to the Tribunal to find as a matter of fact that the circumstances surrounding Mr Aldridge’s removal from the Aboriginal Resources Unit fell within section 8(2)(b) and (c) of the Act. However there was no evidence adduced at the hearing which would have permitted it to conclude that there was differential treatment. As we have discussed at paragraphs 63-64 the Tribunal did make a finding in relation to the issue of causation but there is no point in considering whether this finding was open on the evidence, or whether the actual finding fell within section 7, in the absence of any evidence which would have permitted a finding of differential treatment.

86 Similar difficulties arise in relation to the allegations concerning Mr Woodham’s failure to respond to Mr Aldridge’s correspondence. We believe it unnecessary to determine first, whether it was open to the Tribunal to find that Mr Woodham failed to reply to the correspondence and secondly, whether such a failure fell within the relevant substantive provisions of the Act (that is s 8(2)(c)). Even if it was possible to determine these matters in Mr Aldridge’s favour there was no evidence before the Tribunal which would have permitted it to conclude that in so acting Mr Woodham treated Mr Aldridge less favourably than he did treat, or would have treated, a non-Aboriginal person in the same or similar circumstances and that Mr Woodham so acted on the ground of race.

87 In relation both to Mr Aldridge’s removal from the Aboriginal Resources Unit and Mr Woodham’s failure to respond to Mr Aldridge’s correspondence we have concluded that there was no evidence which could have permitted the Tribunal to decide in favour of Mr Aldridge. Consequently, in substitution for the orders made by the Tribunal in relation to these incidents, we must order that the complaint be dismissed.

88 The issue of the abuse direct by Mr Woodham to Mr Aldridge falls into a different category. There was some evidence which could have permitted the Tribunal to find in favour of Mr Aldridge in relation to the meeting held on 23 August 1995. In his written submissions to the Tribunal Mr Aldridge referred to two incidents in which he claimed Mr Woodham abused him. The first incident occurred on 10 July 1995 and the second on 23 August 1995. There was little evidence in relation to the meeting which took place on 10 July 1995. The evidence which was before the Tribunal would not have permitted it to conclude that Mr Woodham treated Mr Aldridge less favourably than he treated, or would have treated, a non-Aboriginal person and that any less favourable treatment occurred on the ground of race. Consequently, while the Tribunal made no findings in relation to the meeting of 10 July 1995 there were no findings open to it on the evidence which were favourable to Mr Aldridge. In relation to the meeting on 23 August 1995, the Tribunal failed to consider all of the evidence, some of it conflicting, and make findings about what was said. It also failed to determine whether Mr Aldridge was treated less favourably to the way in which others who were non-Aboriginal, were treated and whether any such differential treatment occurred on the ground of race.

89 There was evidence which could have permitted the Tribunal to make findings of fact and draw inferences from those findings which were favourable to Mr Aldridge. Similarly, there was evidence which could have permitted the Tribunal to make findings which were favourable to the Commissioner. However, because the Tribunal failed to pose and answer the correct questions concerning the relevant substantive provision of the Act and the elements of the definition of direct discrimination we have already determined that its conclusions must be set aside. Nevertheless because we have concluded that there was some evidence which could have permitted the Tribunal to find in favour of Mr Aldridge in relation to the incident on 23 August 1995 we cannot make orders in relation to that incident, in substitution for those made by the Tribunal, without examining the evidence ourselves. Given the course which we have decided to follow in relation to this matter no benefit is achieved by setting out at length the findings of fact open to the Tribunal which could have caused it, correctly stating and applying the law, to find in favour of either party in relation to this matter.

Review of the merits

90 To this point we have dealt only with the Commissioner’s appeal on questions of law made pursuant to section 113(2)(a) of the ADT Act. Section 113(2)(b) provides that an appeal may “with the leave of the Appeal Panel . . . extend to a review of the merits of the appealable decision.” The Commissioner has sought leave for its appeal to extend to a review of the merits of the Tribunal’s decision. We have decided to grant that leave in relation to part of the Tribunal’s decision and allow the parties to argue the review of the merits before the Appeal Panel at a later date. While there was some mixing of questions of law and fact when this appeal was argued at no stage did we formally grant leave for the appeal to extend to a review of the merits of the Tribunal’s decision. Having now granted that leave we should permit the parties to make submissions in relation to that part of the Tribunal’s decision which is to be reviewed on the merits.

91 The alternative to granting leave to extend this appeal to a review of the merits, is to remit the matter to the Tribunal to make determinations in accordance with the law as we have stated it. In determining whether to remit a case or determine it ourselves, at least two considerations must be borne in mind. The first is whether the justice of the case demands that the matter be heard afresh by the Tribunal, for example where the credibility of witnesses is a vital issue. The second is whether the interests of justice, in particular the speedy resolution of the matter, suggests that it should be finally resolved by an Appeal Panel. In this case, given that issues of credit are not paramount in relation to the abuse incidents, we believe that the matter should be finally resolved by the Appeal Panel.

92 The language of section 113(2)(b) and of section 115, which is a grant of jurisdiction and powers, is a little unusual when an Appeal Panel is dealing with an appeal from a case in which the Tribunal has exercised its jurisdiction to make an original decision (see section 37 of the ADT Act), as opposed to its jurisdiction to review reviewable decisions (see section 38 of the ADT Act). The wording of the two provisions which apply to the Appeal Panel parallels that found in those parts of the ADT Act which deal with the reviewable decisions jurisdiction (see section 63 of the ADT Act).

93 Section 115 of the ADT Act states that:

(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.
(3) In determining any such appeal, the Appeal Panel may decide:
(a) to affirm the decision, or
(b) to vary the decision, or
(c) to set aside the decision and make a decision in substitution for the decision it set aside.

94 When an Appeal Panel decides to permit an appeal to extend to a review of the merits of the decision under review, what form should that appeal take? While we will afford the parties an opportunity to make submissions in relation to this matter it may assist the progress of this appeal if we advance a tentative opinion. In Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297, Glass JA noted that, “Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics.” He then went on to identify and describe six different types of appeal. In our opinion an appeal to an Appeal Panel which extends to a review of the merits falls within the category described by Glass JA as “appeals from a judge by way of rehearing.” In such cases, according to Glass JA the following occurs:

If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded.” (at 297)

95 Associate Professor Bernard Cairns in Australian Civil Procedure 4th edition (Law Book Co., Sydney 1996) at 637-638 elaborates on the description given by Glass JA in Turnbull:

The court is not confined to a determination of whether the trial judge was wrong on the evidence presented at the trial. A rehearing is a new determination of the rights and liabilities of the parties rather than the correction of errors in the determination of the court below. Moreover, the rehearing is conducted on the basis of the law as at the date of the rehearing. A rehearing does not involve calling oral evidence at the appeal. The appellate court proceeds on the transcript of the evidence given at the trial. And further evidence that is allowed is admitted in documentary form such as an affidavit or deposition.

96 Subject to any submissions which counsel wish to make, this is how we believe an Appeal Panel should conduct an appeal which extends to a review of the merits of an appealable decision. In our opinion we are not limited, as in a strict appeal, to correcting errors which the Tribunal may have made. We are required by section 115 of the ADT Act to reach our own decision in the matter taking into consideration any relevant factual material which was before the Tribunal, plus additional factual material which we admit into evidence and by applying the law as it stands at the time the appeal is heard.

97 For the sake of completeness this form of appeal should be contrasted with “a rehearing de novo.” Glass JA also described this type of appeal in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-8:

All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time.

98 Cairns (at p 636) elaborates on this description by stating that “a rehearing de novo requires a new trial or hearing before the appellate Court . . . and evidence must be called before the appellate court.” We do not believe that section 115 of the ADT Act extends this far. While the Appeal Panel is required to exercise the jurisdiction which the Tribunal initially exercised, the Appeal Panel is not required to exercise this jurisdiction by starting the matter afresh and by conducting a hearing as it would be conducted in the Tribunal. Unless there are exceptional circumstances the appeal should be determined by considering the transcript, the documents admitted as exhibits, any additional factual material in documentary form which we choose to take into account and the submissions by the parties or their legal representatives. Consequently, subject to submissions made by the parties, the review of the merits of that part of the Tribunal’s decision which deals with that portion of Mr Aldridge’s complaint of race discrimination which concerns allegations of abuse directed to him by Mr Woodham will follow this form.

99 The most convenient way to progress this matter is to relist it for directions at a date to be fixed by the Registry. At this hearing directions will be given in relation to the review on the merits and in relation to the final orders (if any) which should be made concerning the complaint of victimisation.

100 As counsel for the Commissioner made no application for costs there is no need for us to consider this issue. We make the following orders:

1. Appeal on error of law allowed.
2. Grant leave for the appeal to extend to a review of the merits of the appealable decision.
3. Set aside the decision and orders made by the Equal Opportunity Division of the Tribunal on 25 May 1999.
4. In place of that decision and orders, and subject to paragraph 5 of these orders, order that the complaints of discrimination on the ground of race and disability be dismissed.
5. That part of the decision of the Tribunal which deals with that portion of the complaint of racial discrimination which makes allegations of abuse directed by Mr Woodham to the Complainant at a meeting on 23 August 1995 be reviewed on the merits.
6. The parties be afforded the opportunity to make submissions to this Appeal Panel concerning the final orders (if any) which should be made in relation to the complaint of victimisation.
7. The matters referred to in paragraphs 5 and 6 of these orders be relisted for hearing before this Appeal Panel.
8. Matter to be relisted for Directions before the presiding member of the Appeal Panel on a date to be fixed by the Registrar.
9. No order as to costs.