Commissioner of Fire Brigades v Lavery (EOD) - [2003] NSWADTAP 60

No judgment structure available for this case.

Appeal Panel - Internal

CITATION: Commissioner of Fire Brigades v Lavery (EOD) [2003] NSWADTAP 60

PARTIES: APPELLANT
Commissioner of Fire Brigades
RESPONDENT
Terence Lavery

FILE NUMBER: 039044 and 039034

HEARING DATES: 20/08/03

SUBMISSIONS CLOSED: 08/27/2003

DATE OF DECISION:
11/26/2003

DECISION UNDER APPEAL:
Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93; Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140

BEFORE: Hennessy N - Magistrate (Acting President); Rice S - Judicial Member; Alt M - Member

CATCHWORDS: costs - jurisdiction - procedural fairness - relevant/irrelevant considerations

MATTER FOR DECISION: Principal

FILE NUMBER UNDER APPEAL: 011023

DATE OF DECISION UNDER APPEAL: 05/06/2003

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Discrimination Act 1991 (ACT)

CASES CITED: Allesch v Maunz [2000] 203 CLR 172
Brandusoiu v Commissioner of Police [1999] NSWADTAP 8
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
Commonwealth of Australia v The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566
De Dominico v Marshall (1999) FCR 97
Devries v The Australian National Railways Commission (1992) 177 CLR 472
French v Sydney Turf Club Ltd [2003] NSWADTAP 10
Haines v Leves & Anor (1987) 8 NSWLR 442
Langley v Niland [1981] 2 NSWLR 104
Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93
Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140
Paing Pty Ltd & Ors v Golden Harvest (Aust) Pty Ltd NSWSC 750
Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia [1989] 27 IR 278
Reyes-Gonzales v Sydney Institute (1998) NSWEOT (6 March 1998)
Salama v Qantas Airways Limited [2002] NSWADT 119
Sullivan v Department of Defence (1992) EOC 92-421
Sullivan v Department of Transport (1978) 20 ALR 323
Tu v University of Sydney (No.2) (EOD)[2002] NSWADTAP 25
Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP26
Woods v Wollongong City Council No.1 (1986) EOC 92-174

REPRESENTATION: APPELLANT
R Goot, senior counsel
K Eastman, counsel
RESPONDENT
J Nolan, counsel

ORDERS: 1 The decision of the Tribunal in Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 that the complaint is substantiated is affirmed.; 2 The order of the Tribunal in Lavery Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 is affirmed.; 3 No order as to costs. ; 4 The appeals are dismissed.

Introduction

1 This is an appeal by the Commissioner of NSW Fire Brigades (the Commissioner) against two decisions of the Tribunal made pursuant to the Anti-Discrimination Act 1977. On 6 May 2003, the Tribunal decided that Mr Lavery’s complaint of disability discrimination against the Commisioner was substantiated. (Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 “the liability decision”). The Tribunal made directions for the filing and service of documents relating to the calculation of damages as well as any submissions in relation to an award of damages. On 12 June 2003, the Tribunal ordered the Commissioner to pay to Mr Lavery the sum of $21,851.51 by way of damages for economic loss. (Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 “the damages decision”). On 29 July 2003, the Tribunal made a costs order against the Commissioner, however there was no appeal before the Appeal Panel in relation to that decision.

Appeal Panel’s Jurisdiction

2 Section 113(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) 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. The Commissioner’s appeal in relation to the liability and damages decisions included applications for leave to extend the appeal to the merits of the decision. However, the Commissioner acknowledged that the purpose of the proceedings before the Appeal Panel was to determine whether the Tribunal had made an error of law before deciding whether to extend the appeal to the merits of the decision.

Grounds of Appeal

3 The Commissioner set out what came down to four grounds of appeal in relation to the liability decision and one ground in relation to the damages decision. In relation to the liability decision, the grounds can be summarised as: the jurisdictional ground, the causation ground, the comparator ground and the future discrimination ground. The future discrimination ground is actually an aspect of the jurisdictional argument and will be dealt with under that heading. In relation to the damages decision, the ground of appeal was that the Tribunal breached the principles of procedural fairness.The jurisdiction ground

4 Outline of submission. The Commissioner submitted that the Tribunal did not have jurisdiction to entertain the complaint because no “contravention” of the AD Act occurred within the period of six months prior to Mr Lavery lodging his complaint with the President of the Anti-Discrimination Board (ADB). In order to determine whether the Tribunal has jurisdiction, we set out below the background to the complaint.

5 Background. Mr Lavery has been employed by the Commissioner since 1968. In 1971 he lost the sight in one of his eyes in a motor vehicle accident. On the basis of medical advice, the predecessor to the Commissioner prohibited Mr Lavery from fire fighting duties and resolved that he should remain at the rank of Second Class Fireman and be placed in a non-operational position. The letter to Mr Lavery communicating this decision was dated 7 September 1971 and stated, in part, that:

you will never be acceptable as being fit for full fire fighting duties.

Having regard to this disability the Chief Officer has recommended that as you are unable to be passed to drive and operate motor fire appliances and you are prohibited from full fire fighting duties and thereby unable to improve to the required standard you should remain at the rank of Second Class Fireman.

I am directed to inform you that the Board at its meeting of 1st September 1971, approved the Chief Officer’s recommendation. (Emphasis added.)

6 On 9 March 1999 Mr Lavery’s solicitors lodged a complaint with the President of the ADB on behalf of their client. After setting out their client’s employment background and the fact that he had been injured in 1971, the complainant’s solicitors stated that:

During his 31 years of service our client has not received any promotion

On two separate occasions during our client’s employment with NSWFB, our client has been refused the opportunity to undertake computer training courses offered by NSWFB, after requesting to do so. To the best of our client’s knowledge no other employee was ever refused the opportunity to undertake these training courses.

Our client has been informed by the NSWFB that he is not, and will not be eligible for promotion, solely because of the loss of his right eye. Enclosed and marked “A” is a letter from the NSWFB, indicating its position. (Emphasis added.)

7 The letter referred to in the final paragraph is the letter dated 7 September 1971, portions of which are set out above. Following further correspondence between the President of the ADB and Mr Lavery’s solicitors requesting further details of the complaint, Mr Lavery’s solicitors wrote to the President on 18 January 2000. In that letter, Mr Lavery’s solicitors state that “our client did not seek promotion as it was evident that he would never be promoted.” The letter also stated that “on two occasions our client has been refused the opportunity to undertake computer training courses offered by NSWFB.” These occasions were said to be “some time prior to 1994” and “approximately March 1995”.

8 Legislative provisions. Under s 88(3) and (4) of the AD Act, a complaint must be lodged within 6 months of the date of any alleged contravention. However, the President of the ADB may accept a complaint out of time in certain circumstances. Those provisions state that:

(4) Notwithstanding subsection (3), the President, on good cause being shown, may accept a complaint which is lodged more than 6 months after the date referred to in that subsection.

9 The President of the ADB did not exercise his discretion to accept the complaint out of time. Therefore, the complaint covers the period from 9 September 1998 to 9 March 1999, the date on which Mr Lavery lodged his complaint with the ADB. That period is referred to in these reasons as “the relevant period”.

10 The President referred the complaint to the Tribunal pursuant to s 94(1) of the AD Act, for an inquiry. In the Amended Points of Claim, Mr Lavery alleged that the Commissioner was in breach of sections 49D(2)(a), s 49D(2)(b) and s 49D(2)(d) of the AD Act. Those provisions state that:

(a) in the terms or conditions of employment which the employer affords the employee, or

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

.(d) by subjecting the employee to any other detriment.

11 Section 49B defines “discrimination” for the purpose of s 49D. That section includes what is known as “direct” and “indirect” discrimination on the ground of disability. Mr Lavery only ever complained that he had been directly discriminated against. The relevant provision is s 49D(1)(a):

(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 who does not have thatdisability or who does not have such a relative or associate who has that disability

12 Tribunal’s approach. The Tribunal addressed the issue of the period of time to which the complaint relates at [64] of its liability decision:

Wollongong City Council v Bonella

13 At [105], the Tribunal made findings of fact which are relevant to the first ground of appeal. The Tribunal said:

We have made the following findings of fact which we believe are necessary in order to determine whether the respondent has contravened the Act as alleged: (1) the letter written to the applicant by the predecessor to the respondent on 7 September 1971 (reproduced in paragraph 19, above) was still operative during the 'relevant period' in the sense that it was a direction by the respondent to the applicant concerning the circumstances of his employment; (2) the effect of this letter, coupled with the respondent's actual conduct, was that during the relevant period the applicant was employed as a fire-fighter in a non-operational position at the rank he had occupied since 7 September 1971 (Level 3 Fire-fighter); (3) in this "re-deployed position" (the term used by the respondent) the applicant was not permitted to participate in the training, and thereby benefit from the consequential promotional opportunities, provided to all operational Level 3 Fire-fighters by the respondent as a matter of course during their daily work;

14 The Tribunal came to the following conclusions at [108] to [111]:

The contravention of s 49D(2)(b) is most readily apparent. There were, in fact, two distinct ways in which this provision was breached. The respondent discriminated against the applicant on the ground of his disability, firstly, by re-deploying the applicant in a non-operational position in which he was denied the training and promotional opportunities afforded to other fire-fighters at his rank and, secondly, by affording him as non-operational fire-fighter no training and promotional opportunities which were equivalent to those afforded to operational fire-fighters.

The facts in relation to the first breach are clear and undisputed but the respondent has argued that he had a lawful excuse for this conduct. On 7 September 1971 the legal predecessor to the respondent, the Board of Fire Commissioners, wrote to the applicant, who was then a Second Class Fireman, and informed him that as a result of the loss of his eye in May 1971 that he was "prohibited from full fire fighting duties" and that he would "remain at the rank of Second Class Fireman". That determination concerning the applicant's employment was still operative during the relevant period and at the time of the hearing of this complaint over 30 years later. It was not in dispute that the applicant was prohibited from engaging in fire fighting duties and that he had during the relevant period, and still has, the rank of Level 3 Fire-fighter which is the modern equivalent of Second Class Fireman. For the past 30 years the applicant has worked in a non-operational position in the Sydney Relay Room answering the telephone and performing other clerical duties.

It is not in dispute that during the relevant period the respondent completely denied the applicant access to the training and promotional opportunities, such as drills, driving fire appliances and fire scene attendance, which were available to all operational Level 3 Fire-fighters as a matter of course during their daily work. It is also not in dispute that the reason for denying the applicant access to these training and promotional opportunities was his loss of sight in one eye. This reasoning has produced the findings of fact recorded at (1), (2) and (3) in paragraph 105, above.

15 Commissioner’s submissions. We understand the Commissioner’s submissions in relation to jurisdiction to comprise three elements. The first is that the Tribunal dealt with matters which were outside the scope of the complaint referred to it by the ADB. The second is that the Tribunal had no jurisdiction in relation to any conduct which occurred prior to the relevant period. The third is that since the Tribunal did not identify any specific incidents or conduct which did occur during the relevant period, no contravention of the AD Act occurred. Consequently, it is argued the Tribunal had no jurisdiction to entertain the complaint. Each of these elements of the jurisdictional ground of appeal is dealt with separately below.

16 Scope of the complaint. The Commissioner’s submission on this, the first element of the jurisdictional ground, was that certain allegations dealt with by the Tribunal were not made in Mr Lavery’s complaint to the President of the ADB. In particular, it is said, Mr Lavery did not complain to the ADB that the Commissioner failed to offer him access to training, apart from the two occasions in relation to computer training. The Commissioner also submitted that the first time Mr Lavery had alleged that there was ongoing discrimination in the terms and conditions of his employment and that he had been subject to other detriments such as loss of benefits and lack of ability to develop his career, was in his Amended Points of Claim.

17 The Commissioner relied on the decision of Reyes-Gonzales v Sydney Institute (1998) NSWEOT (6 March 1998) in which the then Equal Opportunity Tribunal explained at 3.7 to 3.9, that:

The Tribunal's jurisdiction to inquire into a complaint depends upon whether there is a written complaint "in respect of any contravention of (the) Act or the regulations". The expression "in respect of" depends very much upon the context in which it is found. Generally, the expression has the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer: Trustees Executors and Agency Co. Ltd v Reilly (1941) VR 110 at 111, State Government Insurance Office (Queensland) v Rees (1979) 144 CLR 549 per Mason J at 561, The Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 per Wilson and Cauldron JJ at 646-647. See also Law Society of New South Wales v Bruce (1996) 40 NSWLR 77 at 84, where the phrase "in relation to" is discussed.

Consequently, while a written complaint must enable the identification of an alleged contravention of the Act, it need not allege the relevant facts with particularity: Langley v Niland (1981) 2 NSWLR 104 at 107-108. A written complaint does not serve the purposes of a formal pleading. Rather, the purpose of a written complaint is to identify (directly or indirectly) an alleged contravention of the Act or the regulation. The President's jurisdiction to investigate and the Tribunal's jurisdiction to hold an inquiry depend upon the claimed occurrence of what amounts to a contravention of the Act or the regulations, and that claim must be apparent on the face of the written complaint: Nestle Australia Ltd v The President and Members of the Equal Opportunity Board and Ors (1990) EOC 92-281, State Electricity Commission of Victoria v Rabal and Ors (1997) EOC 92-875.

18 More recently in Salama v Qantas Airways Limited [2002] NSWADT 119 at [16], the Tribunal noted that:

Reyes-Gonzalez v Sydney Institute Of Technology

Ehl v Dept of Education and Training & NSW Teachers Federation

; Commissioner of Police, New South Wales Police Service v Orr

Razaghi v Director- General, NSW Department of Health & Anor

19 The Commissioner submitted that the complaint is limited to the allegation that Mr Lavery had not received any promotions during 31 years of service and that on two occasions he was refused the opportunity to undertake computer training courses. According to the Commissioner, the Tribunal erred in entertaining the allegations with respect to the terms and conditions of employment and the broad ranging allegations in respect to training and career development.

20 The Commissioner cited the Full Federal Court decision of De Dominico v Marshall (1999) FCR 97 which dealt with the provisions of the Discrimination Act 1991 (ACT). In particular, s 70(4)(a) of that Act states that “A complaint shall in writing specifying particulars of the complaint.” That provision has now been repealed and its replacement s 72(1), merely states that a complaint shall allege “that a person has done an act that is unlawful . . .” In allowing the appeal, one of the orders that the Federal Court made was to remit the matter to the Administrative Appeals Tribunal (AAT) for reconsideration. The Court added that the reconsideration is to be limited to investigation and determination of the complaint made by the complainant pursuant to s 70. Given that the wording of s 70(4)(a) of the ACT legislation is significantly different from the wording of s 88(3) of the AD Act, this decision is of little assistance to the Commissioner’s case. Indeed, the Commissioner (and the Tribunal) referred to New South Wales Supreme Court authority that while a complaint lodged under the AD Act must allege a contravention of the Act, “it need not allege the relevant facts with the particularity of an indictment or a pleading.” (Langley v Niland [1981] 2 NSWLR at 107-108.)

21 Conclusion on scope of complaint. In his complaint to the President of the ADB Mr Lavery alleged that he had been refused the opportunity to undertake computer training courses. At the request of the President he provided further particulars of these refusals, but those allegations turned out to fall outside the relevant period. In his Amended Points of Claim, Mr Lavery specified s 49D(2)(b) as one of the provisions he said had been breached. That provision relates to promotional, transfer and training opportunities as well as to any other benefits associated with employment. Mr Lavery’s complaint alleges denial of access to computer training opportunities. The fact that Mr Lavery did not make a general allegation of denial of access to training in his complaint does not mean that he is precluded from making that allegation before the Tribunal. It was obvious from the complaint that Mr Lavery was alleging a contravention of s 49D(2)(b) and that one of his concerns was the lack of training opportunities. He does not need to allege the relevant facts with the particularity of an indictment or a pleading. (Langley v Niland [1981] 2 NSWLR at 107-108; Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 at [15] to [16].)

22 Conduct occurring before the relevant period. The Commissioner’s second point in relation to the jurisdictional ground was that the Tribunal was in error in finding that a decision in 1971 constituted a “breach” of the AD Act. The Commissioner referred to the Tribunal’s finding at [109] that the Commissioner discriminated against Mr Lavery by re-deploying him in a non-operational position. According to the Commissioner, the 1971 incident cannot have been a breach of the AD Act because the AD Act did not come into operation until 1977 and there were no provisions in relation to physical impairment until 1981.

23 Conclusion on conduct before the relevant period. This point can be disposed of briefly. The Tribunal did not find that Mr Lavery’s complaint was substantiated on the basis of a finding that a breach of the AD Act had occurred in 1971. A reading of the Tribunal’s decision in context makes it abundantly clear that the discrimination was ongoing from that date, and was continuing during the relevant period.

24 To this the Commissioner says that Mr Lavery did not in fact allege in his complaint that there was ongoing discrimination in the terms and conditions of employment. We find otherwise. The ongoing nature of the conduct is evident from the assertion in Mr Lavery’s complaint that “During his 31 years of service (he) has not received any promotion . . .” Mr Lavery’s allegations in the complaint about training and promotion are capable of being characterised as either a denial of access to promotional and training opportunities under s 49D(2)(b), or as relating to the terms and conditions of his employment under s 49D(2)(a). Mr Lavery was under no obligation to specify particular provisions of the AD Act or to use the language of those provisions in his complaint. None of the authorities cited by the Commissioner suggest otherwise.

25 Although the Tribunal found that the Commissioner had breached both s 49D(2)(a) and (b), it made the comment at [109] that “the contravention of s 49D(2)(b) is most readily apparent.” Indeed the Tribunal found at [121] that “The conduct of the respondent which constitutes two distinct contraventions of s 49D(2)(b) of the Act also amount to two breaches of s 49D(2)(a).” The Tribunal noted, at [121] that there was overlap between these two provisions because in this case the words “terms or conditions of employment” will also encompass training and promotional opportunities. The Tribunal did not make any separate findings of a breach of s 49D(2)(a) apart from the findings that also constituted a breach of s 49D(2)(b). Consequently, even if the Appeal Panel accepted the Commissioner’s submission on this point (which it does not) it would make no difference to the outcome of the case.

26 The Commissioner submitted that Mr Lavery did not allege in his complaint that he had been subject to other detriments such as loss of benefits and lack of ability to develop his career. In relation to allegations concerning “any other detriment”, the Tribunal did not find that the Commissioner was in breach of s 49D(2)(d) so we do not need to determine whether or not it had jurisdiction to consider that matter.

27 No incidents in the relevant period. The Commissioner’s submission on this, the third element of the jurisdictional ground, was that no contravention of the AD Act occurred during the six month period prior to Mr Lavery lodging his complaint with the ADB. According to the Commissioner, the direction to Mr Lavery in 1971 was a discrete act that had ongoing consequences, but does not constitute an ongoing act or ongoing conduct. The Commissioner submitted that the Tribunal failed to find any relevant contravention within the meaning of s 49D(2)(a) or (b) of the AD Act during the relevant period and accordingly the complaint should be dismissed.

28 The Commissioner’s submission about future discrimination was along the same lines. Mr Lavery acknowledged in his letter to the ADB that he “did not seek promotion.” According to the Commissioner in the absence of any application for promotion there could not have been a contravention of s 49D(2)(b) in relation to a refusal or a denial of an opportunity for promotion. The Commissioner submitted that the AD Act does not permit hypothetical or potentially discriminatory complaints. (Woods v Wollongong City Council No 1 (1986) EOC 92-174.) The complainant must be able to show that he or she has been aggrieved by some actual conduct not just proposed conduct. According to the Commissioner, this was not so in the present case and in the absence of any evidence, it was not open to the Tribunal to find that there had been a refusal or denial of opportunities to be promoted.

29 Conclusions on no incident during relevant period. There was no dispute either before the Tribunal or the Appeal Panel, that a complainant must be able to identify a “contravention” of the AD Act within the relevant time period. (Wollongong City Council v Bonella [2002] NSWADTAP 26.) The Tribunal found two relevant matters of fact at [105] of its decision. The first was that “the letter written to the applicant by the predecessor to the respondent on 7 September 1971 . . . was still operative during the 'relevant period' in the sense that it was a direction by the respondent to the applicant concerning the circumstances of his employment.” The second relevant factual finding was that “in this ‘re-deployed position’ . . . the applicant was not permitted to participate in the training, and thereby benefit from the consequential promotional opportunities, provided to all operational Level 3 Fire-fighters by the respondent.” The Tribunal concluded at [108] that:

We are satisfied that the respondent discriminated against the applicant on the ground of his disability in contravention of s 49D(2)(a) and (b) of the Act during the six month period encompassed by the complaint in this case, namely 9 September 1998 to 9 March 1999.

30 The Tribunal characterised its finding that the letter written to Mr Lavery on 7 September 1971 was still operative during the 'relevant period' as a finding of fact. We agree that it is a finding of fact. The Commissioner submitted that the contents of the letter constituted a discrete act that was not continuing or ongoing. In other words, the Commissioner disagrees with the Tribunal’s factual finding.

31 Pursuant to s 113(2) of the ADT Act, an appeal “may be made on any question of law, and with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.” The Commissioner’s Notice of Appeal did seek leave to have the appeal extended to the merits. The only reason relevant to the jurisdictional issue for requesting leave was that “The Tribunal’s finding of facts are inadequate and failed to refer to the evidence adduced by the parties: see [105].” A submission that the Tribunal’s findings were inadequate, is not the same as saying that the finding was not available on the evidence. No submission was made to the effect that the finding of fact was, for example, “inconsistent with the facts incontrovertibly established by the evidence” or “glaringly improbable” so as to constitute an error of law. (See Devries v The Australian National Railways Commission (1992) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.) In any event, the Commissioner appeared to concede at the conclusion of the hearing that the scope of the appeal was at least initially directed towards identifying a legal error. (See Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8 at [4].)

32 In Paing Pty Ltd & Ors v Golden Harvest (Aust) Pty Ltd [2003] NSWSC 750, Newman J set aside a decision of the Appeal Panel of this Tribunal on the basis that it was not open to the Appeal Panel to overturn a finding of fact made by the Tribunal at first instance when it had not extended the appeal to a review of the merits of the decision. Similarly in this case, it is not open for us to overturn the Tribunal’s finding of fact that the letter written to Mr Lavery on 7 September 1971 was still operative during the 'relevant period'. (See also Haines v Leves & Anor (1987) 8 NSWLR 442, per Kirby P at 470 and French v Sydney Turf Club Ltd [2003] NSWADTAP 10, 7 April 2003.) Consequently, the Commissioner’s submissions on this point must fail.

33 Alternatively, if our characterisation of the question of fact, question of law distinction is not correct, and the Commissioner has identified a question of law, we find that no error has been made out. The Tribunal’s finding that Mr Lavery was still subject to the direction in the 1971 letter is entirely consistent with the evidence and was not in dispute before the Tribunal, despite having been put in issue on the appeal. (See [110] of the Tribunal’s liability decision.)

34 Similarly, there was no dispute before the Tribunal that if the conduct was still operative or ongoing during the relevant period, it could constitute a “contravention” pursuant to s 88(3) of the AD Act. In Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 the Appeal Panel found, at [78], that “. . . there is no restriction which arises expressly or by necessary implication from the Act to the lodging of a complaint alleging that a contravention of the Act has continued over a period of time. “ And at [79] “A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues.” At [85] the Appeal Panel said:

Najdovska

Najdovska & Ors v Australian Iron And Steel Pty Ltd

35 The Commissioner did not challenge these findings. Consequently as the Tribunal correctly found that the direction to Mr Lavery in the 1971 letter was still operative during the relevant period, it had jurisdiction to entertain the complaint.

The causation ground

36 The Commissioner’s second ground of appeal was that the Tribunal erred in deciding that there was a breach of s 49(2)(b) of the AD Act, having found as a matter of fact that the reason for Mr Lavery’s not being considered for promotion was because he was in a non-operational position. Having made that finding it was not open to the Tribunal, it is said, to conclude that the reason he was denied promotion was because of his disability. The Commissioner referred to at [112] and [115] of the Tribunal’s decision:

The second way in which the respondent contravened s 49D(2)(b) of the Act is a little more complex. In effect, the cause of this breach was the action of the respondent in maintaining the applicant in a non-operational fire-fighter position where he was precluded from accessing the training and promotional opportunities provided to operational fire-fighters and where he was not provided with any equivalent training and promotional opportunities to those afforded to operational fire-fighters.

37 According to the Commissioner, having determined that the reason for Mr Lavery not being promoted was that he was not an operational fire-fighter, the Tribunal erred by further examining the reason that he was in that situation.

38 This submission is misconceived. In the passages quoted above the Tribunal was not addressing the question of whether the Commissioner’s conduct was “on the ground of” Mr Lavery’s disability as required by s 49B(1). The Tribunal explained at [109], that there were two ways in which the Commissioner had breached s 49D(2)(b):

on the ground of his disability

39 The Tribunal explained at [112] and [115] that the “cause of the breach” in each case was the action of the Commissioner in placing and then maintaining the applicant in a non-operational position. A reading of the whole decision in context makes it apparent that the word “cause” in these paragraphs does not refer to the issue of causation in s 49B(1), but rather to the origins of the unlawful conduct. Under that section, for the Commissioner’s conduct to be unlawful it must, among other things, be “on the ground of” Mr Lavery’s disability. The Tribunal went on to determine, at [119] that the Commissioner’s conduct was “on the ground of” Mr Lavery’s disability, not because he was placed or maintained in a non-operational position.

Comparator issue

40 The third ground of appeal in relation to the liability decision relates to the Tribunal’s choice of a comparator. At [113] of their decision, the Tribunal said, “In denying the applicant opportunities for training and promotion the respondent treated the applicant less favourably than it treated other Level 3 Fire-fighters who do not have his disability.” The Commissioner submitted that Level 3 fire-fighters were not the appropriate comparator group. According to the Commissioner other Level 3 fire-fighters were not in the same or similar circumstances to Mr Lavery. The Commissioner said that the Tribunal had no evidence before it to reasonably reach the conclusion that an operational and a non-operational Level 3 fire-fighter were in the same circumstances, or in circumstances which are not materially different. The Commissioner submitted that the Tribunal failed to take into account the evidence of the nature of the work performed by operational fire-fighters which shows that the circumstances are materially different.

41 The Tribunal explained its choice of the comparator at [113]:

The other people who were afforded the more favourable treatment (the training and promotional opportunities), and who did not have the applicant's disability, were in same circumstances as the applicant as they were Level 3 Fire-fighters. It is not possible to assert that the circumstances were different because the applicant was non-operational and all other Level 3 Fire-fighters without his disability were operational. The action of the respondent in making the applicant non-operational was unilateral. As a matter of workplace practice, the respondent did not maintain two separate classifications of Level 3 Fire-fighters. The people with whom the applicant should be compared were all other Level 3 Fire-fighters.

42 The facts on which the choice of comparator was based appear at [116] to [117].

The effect of this practice was that a Level 3 Fire-fighter with a disability who had been deployed in a non-operational position, such as the applicant, was placed in a 'Catch 22' position concerning training and promotion. There was no training provided as a matter of course, as there was for operational Level 3 Fire-fighters. The only way to be promoted to the rank of Qualified Fire-fighter was to successfully complete the training provided to operational Level 3 and Level 4 Fire-fighters. Consequently, the applicant had no chance of being promoted because he was denied the opportunity to engage in the training provided to operational Level 3 Fire-fighters. Whilst there was evidence, which we accept ( see finding (8) at [105], that one fire-fighter below the rank of Qualified Fire-fighter who was deployed in a non-operational position (Mr Darren Ellen) received training and was 'promoted' to a more highly paid position, this training was not made available as a matter of course, as it was for operational fire-fighters. Mr Ellen was not promoted in rank, but merely transferred to a more highly paid position.

43 The question arose during the course of the appeal proceedings as to whether there was any evidence before the Tribunal of the existence of other Level 3 Fire-fighters who were not engaged in operational duties. Both parties agreed to provide the Appeal Panel with any references in the transcript to such people. Those references include the evidence about Darren Ellen referred to in the Tribunal’s decision, and that there were Fire-fighters either on light duties or permanently incapacitated who did not perform operational duties.

44 The fact that Mr Lavery was in a non-operational position while the vast majority of other Level 3 Fire-fighters were in operational positions does not mean that their circumstances were materially different. The only difference between Mr Lavery and other Level 3 Fire-fighters is that Mr Lavery has a disability which the Commissioner maintains renders him unfit for operational duties. The consequences of Mr Lavery having a disability cannot be used to render the circumstances materially different. This point was recognised by the Human Rights and Equal Opportunity Commission in Sullivan v Department of Defence (1992) EOC 92-421 at 79.005:

It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.

45 The Federal Court has acknowledged this point. (See, for example, Commonwealth of Australia v The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566 at 77,106 per Wilcox J.) Ultimately, the question of whether the circumstances are the same or not materially different is a question of fact. Contrary to the appellant’s submission, the Tribunal took account of all the relevant evidence in coming to its conclusion. We can detect no error of law in relation to the Tribunal’s finding.

The procedural fairness ground relating to damages

46 The final ground of appeal relates to the damages decision. On 6 May 2003, following its findings on liability, the Tribunal made the following directions:

2. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $10,000 by way of general damages.

3. From the date of this order the respondent is to provide the applicant with the rate of pay and other remuneration of a Qualified Fire-fighter until the applicant ceases employment with the respondent or is promoted to a higher rank.

4. Within 42 days of the date of this order the applicant is to file and serve written submissions in support of any application he proposes to make for costs.

5. Within 14 days of receiving the applicant's written submissions in relation to costs the respondent is to file and serve written submissions in response.

6. Any application by the applicant for an order for costs is to be set down for hearing on a date to be determined by the Registrar.

7. Both parties have liberty to apply to the Tribunal for further orders pertaining to the operation of these orders.

47 The Commissioner stated that he sought to have further directions made in relation to the way in which the Tribunal proposed to determine the issue of damages in accordance with Order 7. The Tribunal did not re-list the matter despite the Commissioner’s request. The Tribunal handed down its damages decision before the Commissioner had made any submissions, thus denying the Commissioner procedural fairness.

48 Mr Lavery’s submissions on procedural fairness. Mr Lavery’s representative acknowledged that the Tribunal is obliged to extend procedural fairness to the parties. (See s 73(2) of the ADT Act.) As the Tribunal pointed out, the Commissioner’s submissions were 22 days late and no explanation for the delay was provided. A party who has been given an opportunity to be heard on an issue and has failed to avail him or herself of that opportunity cannot complain that he or she has been denied natural justice. In Allesch v Maunz [2000] 203 CLR 172 at p 186 Kirby J made the observation in relation to the principle to afford a hearing that:

. . . it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

49 Mr Lavery’s representative also relied on the decision in Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J; and Re Association of Architects of Australia; ex part Municipal Officers Association of Australia [1989] 27 IR 278 at 289 per Brennan Dawson & Gaudron JJ).

50 No evidence was provided in relation to the chain of events after the liability decision was handed down. However the Tribunal’s damages decision at [4] to [8] sets out what happened.

The solicitors for the respondent did not file any material during the 14-day period stipulated in the order. On 26 May 2003 those solicitors sent a letter to the Registrar in which they stated that the applicant's solicitors did not consult them before filing their letter of 20 May 2003 and that as the respondent disputed the applicant's calculations, "it will be necessary for this matter to be re-listed for directions regarding those outstanding issues".

We decided not to re-list this matter for further directions as the steps both parties were required to take in order to permit the Tribunal to calculate the applicant's economic loss were clearly set out in the earlier decision. The obvious import of the Tribunal's first order, especially when read with the comments made at [139] in the earlier decision, was that the parties were encouraged to attempt agreement concerning what we consider to be arithmetical calculations. In the event that they were unable to agree, or were not inclined to even attempt agreement, both parties were given a reasonable opportunity to prepare and file their own calculations.

On 11 June 2003 the solicitors for the respondent filed a letter with the Registrar in which they disputed matters set out in the applicant's solicitors' letter of 20 May 2003. No reason was advanced for the failure to comply with the 14-day time period stipulated in the first order made on 6 May 2003. The respondents' submissions are 22 days late. There have been a number of occasions throughout this case when the respondent, without explanation, has failed to comply with reasonable time limits. In the circumstances we do not propose to take the matters set out in the letter of 11 June 2003 into account as it is unfair to the applicant if the respondent continually chooses to litigate according to his own timetable rather than that set by the Tribunal and complied with by the applicant.

As the respondent did not avail himself of the opportunity to file his own calculations of the applicant's economic loss within the time stipulated in the order, we propose to deal with this matter by considering the applicant's letter of 20 May 2003 and the evidence which was adduced at the earlier hearing.

51 As Mr Lavery’s representatives pointed out, there is no denial of procedural fairness merely because a party does not avail itself of the opportunity to put relevant evidence or submissions before the Tribunal. In this case, the Commissioner was given every reasonable opportunity to file and serve relevant material, but failed to do so within the time stipulated. Those circumstances do not amount to a breach of procedural fairness.

Extension to the merits

52 We have found no error of law, or any other basis for extending the appeal to the merits of the decision. Consequently we do not grant leave for the appeal to be extended to the merits.

Costs

53 Mr Lavery’s legal representatives applied for costs of the appeal. The basis for that application was firstly that the Commissioner did not raise the jurisdictional points before the Tribunal and secondly that the appeal sought to revisit factual matters which were largely undisputed before the Tribunal.

54 Costs in proceedings before the Appeal Panel are governed by s 88 of the ADT Act. That section states that:

Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

55 In Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 the Appeal Panel made some observations about the approach the Appeal Panel should take to an application for costs in equal opportunity matters. In relation to the question of whether the Tribunal should award costs at first instance, the Appeal Panel said, at [42] that:

The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

56 In relation to costs of an appeal, the Appeal Panel said at [61] to [63], that:

In equal opportunity appeals a distinction should be drawn between appeals against summary dismissal decisions and appeals in respect of matters that were fully heard and determined. Appellants against summary dismissal decisions who fail on appeal should normally be required to meet the respondent's costs of the appeal (at least to the extent of the services of one legal practitioner). . .

In cases where there has been a full contest and an appeal is lodged, the position will often be different, and often there may be no order as to costs in relation to the appeal . . . The appeal though unsuccessful may have, for example, raised an important point of law that was not free from doubt.

57 In this case there was a “full contest” at the Tribunal level. We accept the submission from Mr Lavery’s representative that the Commissioner did not raise the jurisdictional points before the Tribunal and attempted to revisit factual matters which were largely undisputed before the Tribunal. However, the appeal raised questions of law which it was open for the Commissioner to argue. Even though none was ultimately made out, their failure to raise an issue at first instance does not amount to “special circumstances warranting an award of costs.”

Orders

Lavery v Commissioner of NSW Fire Brigades

2. The order of the Tribunal in Lavery Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 is affirmed.

3. No order as to costs.

4. The appeals are dismissed.

Citations

Commissioner of Fire Brigades v Lavery (EOD) [2003] NSWADTAP 60

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CITATION:	Commissioner of Fire Brigades v Lavery (EOD) [2003] NSWADTAP 60
PARTIES:	APPELLANT Commissioner of Fire Brigades RESPONDENT Terence Lavery
FILE NUMBER:	039044 and 039034
HEARING DATES:	20/08/03
SUBMISSIONS CLOSED:	08/27/2003
DATE OF DECISION:	11/26/2003
DECISION UNDER APPEAL:	Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93; Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140
BEFORE:	Hennessy N - Magistrate (Acting President); Rice S - Judicial Member; Alt M - Member
CATCHWORDS:	costs - jurisdiction - procedural fairness - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal
FILE NUMBER UNDER APPEAL:	011023
DATE OF DECISION UNDER APPEAL:	05/06/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Discrimination Act 1991 (ACT)
CASES CITED:	Allesch v Maunz [2000] 203 CLR 172 Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Commonwealth of Australia v The Human Rights and Equal Opportunity Commission & Ors (1994) EOC 92-566 De Dominico v Marshall (1999) FCR 97 Devries v The Australian National Railways Commission (1992) 177 CLR 472 French v Sydney Turf Club Ltd [2003] NSWADTAP 10 Haines v Leves & Anor (1987) 8 NSWLR 442 Langley v Niland [1981] 2 NSWLR 104 Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 Paing Pty Ltd & Ors v Golden Harvest (Aust) Pty Ltd NSWSC 750 Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia [1989] 27 IR 278 Reyes-Gonzales v Sydney Institute (1998) NSWEOT (6 March 1998) Salama v Qantas Airways Limited [2002] NSWADT 119 Sullivan v Department of Defence (1992) EOC 92-421 Sullivan v Department of Transport (1978) 20 ALR 323 Tu v University of Sydney (No.2) (EOD)[2002] NSWADTAP 25 Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP26 Woods v Wollongong City Council No.1 (1986) EOC 92-174
REPRESENTATION:	APPELLANT R Goot, senior counsel K Eastman, counsel RESPONDENT J Nolan, counsel
ORDERS:	1 The decision of the Tribunal in Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 that the complaint is substantiated is affirmed.; 2 The order of the Tribunal in Lavery Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 is affirmed.; 3 No order as to costs. ; 4 The appeals are dismissed.