Commissioner of Police, New South Wales Police Service v Orr

[2001] NSWADTAP 16

Appeal Panel

CITATION:	Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police Service RESPONDENT Amanda Jane Orr
FILE NUMBER:	009033
HEARING DATES:	02/02/2001
SUBMISSIONS CLOSED:	02/02/2001
DATE OF DECISION:	07/13/2001
DECISION UNDER APPEAL:	Orr -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 150
BEFORE:	Latham M - DCJ (Deputy President); Britton A - Judicial Member; Edwards K - Member
CATCHWORDS:	fail to excercise jurisdiction - opportunity to be heard - refusal to receive evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991111
DATE OF DECISION UNDER APPEAL:	10/31/2000
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	The Mutual Life and Citizens’ Assurance Company Ltd v. Attorney General ( Qld) & anor (1961) 106 CLR 48 Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98 Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102 Maxwell v Murphy (1957) 96 CLR 261 Rodway v The Queen (1990) 169 CLR 515 O’Callaghan v Loder [1983] 3 NSWLR 89 Hall v Sheiban (1989) 85 ALR 503 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Tannock v State of New South Wales [1999] NSWADT 73 Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 Electricity Commission of Victoria v Rabel [1998] 1 VR 102
REPRESENTATION:	APPLICANT P Singleton, barrister RESPONDENT C Ronalds, barrister
ORDERS:	1. The order of the Tribunal of 31 October 2000 is set aside; 2. In lieu, the complaints referred to as complaints 1 and 2 in the Amended Points of Claim are struck out; 3. So much of the complaints numbered 1-3, 5-11, 13 and 14 in the Amended Points of Claim, only in so far as they rely upon ss22A and/or 22B of the Anti Discrimination Act, are struck out; 4. The application under s111 and the application for security costs are remitted to the Tribunal for hearing.

1 This is an appeal brought by the Commissioner of Police against the refusal of the Tribunal below to dismiss a number of “complaints” enumerated by the respondent/complainant in an Amended Points of Claim filed in the Tribunal on 13 March 2000, and to strike out those parts of the “complaints” which alleged a contravention of ss 22A and 22B of the Anti Discrimination Act 1977 (the AD Act). In addition, the appellant claims that the Tribunal erred in not making an order for security of costs. As to both of these grounds, it is further claimed that the Tribunal dismissed the respective applications without effectively hearing them. There was a further ground, namely that the Tribunal failed to provide reasons.

Background

2 The complainant’s legal representatives wrote to the President of the Anti Discrimination Board (the President) on 7 July 1997 in the following terms :-
“We are instructed to make a complaint to the Anti Discrimination Board on the basis that the NSW Police Service has contravened sections 24 and 25 of the Anti Discrimination Act 1977 (NSW) in relation to its treatment of our client. The incidences of contravention of sections 24 and 25 have occurred during the last seven years of our client’s employment with the NSW Police Service.”

3 The letter went on to detail twelve very specific incidents (referred to as “acts of discrimination”) occurring between 31 December 1990 and 19 January 1997. On 24 September 1997, the complainant herself, by way of letter dated 22 September 1997 to the Anti Discrimination Board (the Board), formally adopted the matters set out in her solicitor’s letter as constituting her “complaint”. Nothing turns on the date upon which the “complaint” was lodged, given that all but one of the incidents giving rise to the “complaint” were out of time, in any event. The President exercised his discretion under s 88(4) to receive the matter out of time.

4 On 10 November 1999, the “complaint” was referred to the Tribunal under s 94(1)(a) of the AD Act. The Amended Points of Claim, which provided the basis for the application below, alleged direct discrimination on the ground of her sex (s 24(1)(a)), discrimination on the ground of her sex in the terms and conditions of her employment (s 25(2)(a)) and by subjecting her to other detriment (s 25(2)(c)), and sexual harassment (s 22A, s 22B(1) and (2)). The document went on to particularise fourteen “complaints”, the first two of which were complaints of sexual harassment and discrimination on the grounds of sex, occurring in the three year period beginning 27 July 1990, and on 12 December 1990 respectively. The remaining twelve “complaints” in the Points of Claim corresponded with those which had already been particularised in the letter to the President of 7 July 1997.

5 The appellant/respondent made a number of interlocutory applications under s 111 of the Anti Discrimination Act, which can be summarised thus:-

(1) Orders for the dismissal of complaints 1 and 2 on the ground that they had not been referred to the Tribunal by the President;
(2) Orders for the striking-out of so much of each complaint as relied on ss.22A and /or 22B (being complaints alleging matters that occurred before 14 July 1997);
(3) Orders for the dismissal or striking out of specified complaints that factually did not (either by way of pleading or by way of evidence ) disclose a cause of action.

In this decision we shall refer to these applications as Interlocutory Application 1, 2 and 3 respectively.

Interlocutory Application 1

6 The appellant asserts that the Tribunal erred in failing to address the submission advanced on its behalf in relation to Interlocutory Application 1, namely that the Tribunal was without jurisdiction to entertain complaints 1 and 2. It is not in issue that no specific reference was made to these two “complaints”, either in the letter lodged on behalf of Ms Orr by her legal representatives with the President on 7 July 1997, or in the President’s Report forwarded to the Tribunal pursuant to s 94(1) of the AD Act. The appellant argues, in effect, that the Tribunal is barred from determining these two “complaints” and was obliged to exercise its powers pursuant to s 111 of the AD Act or s 81 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) in order to strike out complaints 1 and 2 from the Amended Points of Claim.

7 The respondent to this appeal submits that this argument reveals a flawed understanding of the term “complaint” in the arena of discrimination law. The submission maintains that “Complaints” 1 and 2 are but factual allegations supporting the complaint, more usually referred to as “incidents” or “particulars.” According to the respondent, there are but three complaints before the Tribunal, namely a contravention of the Act in the area of employment on the ground of sex and/or sexual harassment, and/or victimisation.

8 It is useful at this point to briefly set out the basis of the Tribunal’s jurisdiction. The Tribunal is a creature of statute. Its jurisdiction is circumscribed by the statute establishing it, namely the ADT Act. It goes, virtually without saying, that it has no power to inquire at large into matters which take its interest. Further, the Tribunal has power to govern its own process and to prevent abuse of that process. The Tribunal has a duty to decline to hear cases over which it has no jurisdiction: The Mutual Life and Citizens’ Assurance Company Ltd v. Attorney General( Qld) & anor (1961) 106 CLR 48.

9 Chapter 3 of the ADT Act provides that the Tribunal has such jurisdiction as is conferred by other Acts of Parliament. By way of Division 3 of Pt 9 of the AD Act, jurisdiction under that Act is conferred upon the Tribunal.

10 Section 96 of the AD Act is critical to the Tribunal’s jurisdiction in this matter. Section 96 provides:-
“ The Tribunal shall hold an inquiry into each complaint or matter referred to it under section 91(2), 94(1) or 95.”

11 Section 94 (1) provides:-
“Where the President:

(a) is of the opinion that a complaint cannot be resolved by conciliation,
(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,
the President shall refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint.”

12 A complaint referred to the Tribunal under s. 94(1) is initiated by a “complaint” in writing, lodged with the President “in respect of any contravention of this Act”. Having received a written complaint pursuant to s. 88 the President is obliged to investigate that complaint (s. 89(1)).

13 In essence, the question for the Tribunal to decide was, what was the “complaint” referred to it under s 94(1)? Regrettably, the discussion before the Tribunal and the decision itself focussed on the stage at which an application under s 111 could properly be brought. The Tribunal was of the view that it had no factual basis upon which to determine such an application, having already acceded to the complainant’s proposition that there was no power under s 111 to strike out part only of a complaint. We deal with this aspect of the decision below, but as will become apparent from what follows, the Tribunal failed to address the substantive issue raised by the appellant, which was one of jurisdiction.

14 The authorities make it clear that while a complaint lodged pursuant to s. 88 of the AD Act must allege the commission of a contravention of that 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. In Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR at 93 –94 Merkel J took the view that s.50 of the Sex Discrimination Act 1984 (Cth) (broadly comparable to s. 88 of the AD Act ) did not require the complaint to include any details of the allegedly unlawful act.

15 It is important however, to distinguish between a failure to provide particulars of a complaint, on the one hand (a question of procedural fairness and natural justice), and the limits of the Tribunal’s jurisdiction on the other (a question of power). The Tribunal’s capacity and power to govern its own proceedings is conferred by the ADT Act : s 73(1). It has broad powers to conduct matters in whatever manner it thinks fit: s73(2) ; it has a duty to act with as little formality as the circumstances permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form : s 73(3). Hence, it will generally be the case that the Tribunal places procedural limits on the cases before it. Such limits may be imposed by way of requirements upon parties to define their cases by way of pleadings, points of claim, statements of particulars and so on. The objects of such definition and refinement of proceedings is to enable the Tribunal ultimately to determine the issues which divide the parties, and to prevent cases becoming mired in collateral issues. This is both in the public interest and the interests of the parties who, by litigating, incur significant costs. It is also a question of natural justice. Parties are entitled to know the case against them. It is fundamentally unfair if one party shifts its ground in significant ways without the other having the opportunity to deal with the resultant prejudice.

16 A failure to provide particulars of a complaint made in writing to the Board does not invalidate that complaint, nor does it deprive the Tribunal of jurisdiction if that complaint is referred for an inquiry ; it may prompt a request for particulars and/or an application under s111 of the AD Act, if they are not forthcoming, but the Tribunal’s jurisdiction has been properly invoked, albeit by the referral of a complaint devoid of any factual context. The Tribunal’s jurisdiction is nonetheless dependent upon the content of a complaint which has been referred to it. Where the details of the alleged contravention are provided by way of an initiating complaint to the Board, and it is the referral of that complaint which is the source of the Tribunal’s power to hold an inquiry, the Tribunal has no jurisdiction to inquire into alleged events which fall outside the period identified by the written complaint : Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98 ; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102.

17 The initiating complaint, as described by the respondent/complainant’s legal representatives, alleged contraventions of the AD Act arising from incidents that occurred after 31 December 1990. Nothing was put to the Board to suggest that there was any misconduct prior to 31 December 1990. In fact, the initiating complaint commenced with an account of the most recent alleged act of discrimination, namely one occurring on 19 January 1997 (incident number 14 in the Amended Points of Claim), and then proceeded to refer to “prior acts of discrimination” under that heading. Before turning to each of those eleven further acts, the letter requested that the President exercise his discretion to accept them out of time. No such discretion could be exercised in relation to what is now allegations 1 and 2, because they were only made after the matter was referred to the Tribunal. They were never part of the complaint as referred to the Tribunal and cannot now be deemed to be within its jurisdiction.

18 As noted above, much of the argument before the Tribunal below centred on whether s 111 was available to dismiss anything less than the whole of the complaint referred from the Board. Section 111 of the AD Act speaks of dismissal of a complaint which is “frivolous, vexatious, misconceived or lacking in substance, or ... for any other reason”. The four specific descriptions which precede the catch-all (“any other reason”) have been held to refer to an insufficiency or absence of merit in the factual basis of the allegations made in the complaint, whereas “for any other reason” is capable of referring to a want of jurisdiction : Langley v Niland & anor [1981] 2 NSWLR 104 at 107D-G. The Tribunal has previously utilised s 111 in order to dismiss part only of a complaint, although the point was not argued in the proceedings : Wensley v Director General, Dept of Education and Training [2000] NSWADT 142. For our part, we see nothing objectionable in utilising s 111 to dismiss part of a complaint in respect of which the Tribunal does not have jurisdiction, but on one view, there need be no resort to s 111 because what is sought to be dismissed was never properly before the Tribunal in the first place (see Phillpot v The Spastic Centre of NSW,unreported, 2 May 2001).

19 Section 73(5)(h) of the ADT Act (which picks up s 111 of the AD Act) does not permit of the “any other reason” category. Moreover, it speaks in terms of “any proceedings” rather than in terms of a complaint. In that sense, it is both narrower and broader than s 111 of the AD Act, which it complements. The appellant does not specifically rely upon s 73(5)(h), rather the appellant points to s 81 of the ADT Act as a basis for striking out a substantial number of the complaints. That application is, in our view, misconceived. These provisions appear in Part 2 of Chapter 6 of the Act with the heading “Other Procedural Matters”. They are provisions which are generally designed to streamline proceedings before the Tribunal. As such, they are procedural as opposed to substantive provisions.

20 It is noteworthy that s 81 appears to have no equivalent in the Acts regulating Anti Discrimination law in other Australian jurisdictions. It does however find expression in the Equal Opportunity Tribunal Rules 1988 of South Australia, in particular, Rule 8(2)(iii) which provides for the amendment of the pleadings. This reinforces our view that s 81 was never intended as an instrument for the striking out of a complaint.

21 We return to the important distinction between questions of jurisdiction and questions of procedural fairness. The Tribunal did not have jurisdiction to hear allegations which were not referred under s 94(1) of the AD Act. The complaints nominated 1 and 2 in the Amended Points of Claim are struck out.

Interlocutory Application 2

22 Complaints numbered 1-3, 5-11, 13 and 14 in the Amended Points of Claim alleged both discrimination on the grounds of sex contrary to s 24(1)(a) and s 25(2) of the AD Act and sexual harassment contrary to ss 22A and 22B of the AD Act. The sexual harassment provisions took effect on 4 July 1997. The factual allegations underlying the complaints founded on ss 22A and 22B occurred before 4 July 1997, specifically between 27 July 1990 and 19 January 1997. The appellant contends that the Tribunal had no jurisdiction to hear any complaints founded on ss 22A and 22B, given that the cause of action did not exist at the time of the alleged events giving rise to them.

23 The Tribunal’s decision did not address this application at all. Accordingly, there was a failure to exercise jurisdiction and it falls to the Appeal Panel to consider this issue.

24 The respondent’s answer to the appellant’s argument is to claim that the relevant date for the purposes of enlivening the Tribunal’s jurisdiction in respect of the sexual harassment complaints is the date of complaint, that is, 8 July 1997, or at the latest, 22 September 1997 (being the date of the complainant’s letter to the Board). It is asserted that an amendment to the pleadings, such as that made by the Amended Points of Claim, takes effect from the date of the commencement of proceedings, being the date of the initiating complaint. Whether recourse to the Supreme Court Rules (Part 20, r 1) produces this result or not, it is, with respect, of no assistance to the respondent in the circumstances of this matter. The issue is not whether sexual harassment existed as a distinct form of discrimination law before the complainant made her original complaint ; the issue is whether events occurring before 4 July 1997 can render the appellant liable under ss 22A and 22B. In other words, does ss 22A and 22B have a retrospective operation?

25 The rule relating to retrospectivity was formulated by Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 at 267 as follows :-
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights and liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such presumption”

See also Rodway v The Queen (1990) 169 CLR 515.

26 The distinction was there observed between substantive and merely procedural provisions, the former being subject to the common law presumption against retrospectivity whilst the latter, generally speaking, were not. The respondent points out that, in one sense, the insertion of ss 22A and 22B achieved nothing because sexual harassment had already been recognised as a species of sex discrimination under s 25(2) of the AD Act : O’Callaghan v Loder [1983] 3 NSWLR 89 ; Hall v Sheiban (1989) 85 ALR 503. We understand the respondent to be arguing that ss 22A and 22B did not affect the liability of the appellant for the alleged conduct towards the complainant, so that the presumption against retrospective operation does not apply to these provisions. Some regard to the terms of the decision in O’Callaghan v Loder is necessary in order to pursue this line of argument.

27 The relevant passage appears at p 105G-106B of the report. Mathews DCJ (as she then was) held that sexual harassment by an employer could amount to a contravention of the AD Act “in the following additional circumstances: firstly, if the conduct was such as to create an unwelcome feature of the employment so as to fall within s 25(2)(a) or to be a ‘detriment’ under s 25(2)(c) or secondly, if the employer secured compliance with his sexual demands by threatening adverse employment consequences (s 25(2)(a)) or thirdly, if rejection of the employer’s sexual demands led to retaliation in the form of loss of access to employment opportunities; (s 25(2)(b)) or fourthly, if rejection of the employer’s sexual demands led to retaliation in the form of dismissal or some other loss of tangible employment benefits (s 25(2)(c)).”

28 Two features of this decision demonstrate that the insertion of ss 22A and 22B did indeed affect the liability of persons subjecting others to sexual harassment in the workplace, beyond what was within the scope of the AD Act before 7 July 1997. Firstly, before the insertion of ss 22A and 22B, it was not possible to bring a complaint against an employee under s 25(2), although an employee could be joined as a party to a complaint against an employer sought to be made liable under the provisions of s 53 of the AD Act. Section 22B(2), which is pleaded in respect of twelve of the fourteen incidents in this matter, renders fellow-employees liable for sexual harassment, independently of any liability for sexual harassment which might fall on the employer. Secondly, apart from the sexual harassment itself constituting an unwelcome feature of the employment or a detriment, the remaining circumstances identified by Mathews DCJ require proof of a disadvantage or detriment, where there is actual or contemplated non-compliance with the sexual demands placed upon the complainant. No such requirement is placed on a complainant for the purposes of s 22B ; the sexual harassment per se constitutes the unlawful conduct.

29 Against this background, the respondent’s contention must be rejected ; sections 22A and 22B changed the pre-existing law in some fundamental respects. They cannot be characterised in any way as merely procedural provisions.

30 There is no indication that Parliament intended ss 22A and 22B to operate retrospectively and the presumption against it has not been displaced. The Tribunal cannot entertain complaints under ss22A and 22B in relation to conduct which was not unlawful at the time it took place. It follows that the Tribunal below should have acceded to the appellant’s second interlocutory application.

Interlocutory Application 3

31 The appellant sought the striking out of complaints 3, 4, 5, 6, 8, 9, 10, 11, 13 and 14 on the grounds that the facts as pleaded in the Amended Points of Claim could not give rise to a cause of action under the AD Act. Complaint 3 was allegedly deficient in that no inference arose that the events occurred in the course of employment. Complaint 4 was allegedly deficient in that there was no evidence of, or inference available that, the alleged assailant was an employee of the Commissioner of Police. Complaints 4, 5, 6, 8, 9, 10, 11 and 13 were allegedly deficient in that there was either no evidence, or no prima facie case, of differential treatment in the relevant sense.

32 As can be seen from this summary of the appellant’s argument on this limb of the application, the Tribunal was being asked to determine essentially whether a prima facie case existed or whether certain inferences sought to be drawn by the complainant were available in respect of these complaints. The appellant submitted that this exercise could be conducted on the basis of the Amended Points of Claim and the evidence filed on behalf of the complainant. There was a considerable amount of discussion before the Tribunal about whether the appellant/respondent should be permitted to tender this material on the application, over the respondent/complainant’s objection. In the result, the material was not received into evidence on the application and accordingly, the Tribunal ruled that it had no evidence upon which it could determine this aspect of the application (paras 9 and 10 of the decision).

33 We agree with the appellant that the Tribunal erred in refusing to receive the evidence which the appellant sought to tender on the application. There was nothing inherently objectionable about the material itself or the procedure the Tribunal was being asked to follow. It is trite to observe that the Tribunal is not bound by the strict rules of evidence and that it can largely determine its own procedure (s 73 ADT Act). That said, an applicant under s111 should not be shut out, merely by an objection on the complainant’s part to the tender of material in the application, upon which the complainant would seek to rely, if the matter were to go to hearing. Failing the acquiescence of the complainant in the tender of the material filed by the complainant, every application under s 111, brought prior to the hearing date, would effectively be defeated before it began. If the Tribunal hearing such an application is not satisfied that the material so tendered adequately represents the complainant’s case, the remedy is to allow the complainant to call further evidence before determining an application under s 111.

34 However, for practical purposes, it is understandable that the Tribunal would wish to postpone this exercise until the complainant had the opportunity to present her case in full, that is, when the matter had been set down for hearing. Consistent with previous decisions of the Tribunal which have considered applications under s 111, the discretion to dismiss a complaint summarily should be exercised with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 73). The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant’s evidence at the substantive hearing. Of course, the appellant/respondent argues that similar considerations relating to the cost to, and oppression of, the respondent, militate in favour of determining an application under s 111 in advance of any hearing date. The respondent, according to this argument, should not be put to the trouble and expense of preparing a full defence, if the complainant’s case has no prospect of success.

35 Whilst the appellant’s concerns are not without substance, particularly in the circumstances of this matter, involving as it does a considerable delay since some of the alleged events constituting the basis of the alleged discrimination, it may not be until the close of the complainant’s case that it can be unequivocally claimed that the complainant has "had every opportunity to identify the subject matter of the complaint and produce all available evidence in support" (Assal v Department of Health, Housing and Community Services (1992) EOC 92-409). We do not understand the appellant to be arguing that the complaints are “frivolous” or “vexatious” within the meaning commonly ascribed to those terms, that is, that the complaints represent an abuse of process (see State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109). We understand the appellant’s contention to be that the complaints are “misconceived” or “lacking in substance”, that is, that they are based upon "a misunderstanding of legal principle" or "an untenable proposition of law or fact" (Rabel ). In those circumstances, it is appropriate that the Tribunal determine whether the complaints answer that description after the complainant has placed the entirety of her evidence before it.

36 We add for more abundant caution that we are not laying down any binding matter of principle concerning the approach to be taken to s 111 applications. Each application must be dealt with according to its own circumstances. It is largely a matter of discretion whether an application ought to be heard and determined prior to the hearing of the complainant’s case - some cases may lend themselves to such an approach, others may not. Certainly, a party has the right to request a s 111 application to be listed and determined prior to the hearing of the complaint, but the Tribunal determines its own procedures in this, as in all matters.

37 In the instant matter, the Tribunal’s error lay in effectively refusing to consider the appellant’s application, or in other words, refusing to exercise jurisdiction. Had the Tribunal considered the application, it may have exercised its jurisdiction appropriately, either by allowing the complainant to call any additional evidence, or by adjourning the application to a further date, being the date allocated to the hearing of the complaints. In the latter event, the question of what, if any, remedy is available to the appellant/respondent for the costs incurred in the preparation of its case is a separate issue, to which we now turn.

The Application for Security of Costs

38 There is nothing in the Tribunal’s decision which reflects the appellant’s application for security of costs under s 114(2) of the AD Act. That application was before the Tribunal, in the event that it declined to make the orders sought by way of striking out. The appellant has also made good this ground of the appeal, in that the Tribunal failed to exercise its jurisdiction.

39 The appellant does not call upon the Panel to consider whether to award security of costs. We are asked to remit the matter to the Tribunal below, given that no argument has been entertained on the question and no opportunity given to call evidence in respect of it.

40 Accordingly, the orders of the Panel are :-

(1) The order of the Tribunal of 31 October 2000 is set aside.
(2) In lieu, the complaints referred to as complaints 1 and 2 in the Amended Points of Claim are struck out.
(3) So much of the complaints numbered 1-3, 5-11, 13 and 14 in the Amended Points of Claim, only in so far as they rely upon ss 22A and/or 22B of the Anti Discrimination Act, are struck out.
(4 The application under s 111 and the application for security of costs are remitted to the Tribunal for hearing.