Commissioner of Police, NSW Police v Mooney (No 3)

[2004] NSWADTAP 22

Appeal Panel - Internal

CITATION:	Commissioner of Police, NSW Police v Mooney ( No 3) (EOD) [2004] NSWADTAP 22
PARTIES:	APPELLANT Commissioner of Police, NSW Police RESPONDENT Dennis James Mooney
FILE NUMBER:	039065
HEARING DATES:	22/03/2004
SUBMISSIONS CLOSED:	04/23/2004
DATE OF DECISION:	06/08/2004
DECISION UNDER APPEAL:	Mooney v Commissioner of Police (No 3) [2003] NSWADT 189
BEFORE:	Chesterman M - ADCJ (Deputy President); Rees N - Deputy President; Taksa L - Non Judicial Member
CATCHWORDS:	application of common law test - costs - finding contrary to evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	021094
DATE OF DECISION UNDER APPEAL:	08/14/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Sex Discrimination Act 1984 (Cth) Social Security Act 1991 (Cth) Superannuation Act 1916 Trade Practices Act 1974 (Cth)
CASES CITED:	Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 Australian Postal Commission v Dao (1985) 3 NSWLR 565 Bonella v Wollongong City Council [2001] NSWADT 194 Brandusiou v Commissioner of Police [1999] NSWADTAP 8 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 Commissioner of Police v Mooney (No 2) [2003] NSWADTAP 67 Gregory v Philip Morris Ltd (1988) 80 ALR 455 Haines v Bendall (1990) 172 CLR 60 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 Harriton v Stephens [2004] NSWCA 93 Henville v Walker (2001) 206 CLR 459 March v Stramare (1991) 171 CLR 506 Mooney v Commissioner of Police, NSW Police Service (No 2) [2003] NSWADT 107 Tu v University of Sydney (No 2) [2002] NSWADTAP 25
REPRESENTATION:	APPELLANT S Winters, barrister RESPONDENT S Beckett, barrister
ORDERS:	1. Appeal dismissed; 2. The appellant to pay the respondent’s costs of the appeal.; 3. If the parties are unable to agree on the amount of costs, that sum is to be determined by a costs assessor in accordance with the Legal Profession Act 1987

Introduction

1 The Commissioner of Police (the Commissioner) has appealed against a decision made by the Equal Opportunity Division of the Tribunal on 14 August 2003 that the Commissioner pay the respondent to the appeal, Mr Denis Mooney, the sum of $40,000 by way of damages.

2 Some months earlier, on 19 March 2003, the Tribunal had found Mr Mooney’s complaint of unlawful discrimination on the ground of disability against the Commissioner, his former employer, to be substantiated (Mooney v Commissioner of Police, NSW Police Service (No 2) [2003] NSWADT 107). The Commissioner appealed against that decision. The Appeal Panel dismissed that appeal on 18 December 2003 (Commissioner of Police v Mooney (No 2) [2003] NSWADTAP 67, hereinafter ‘our earlier decision’).

3 This appeal against the Tribunal’s award of damages was heard in Sydney on 22 March 2004. Both parties were represented by counsel: Ms Winters represented the Commissioner and Mr Beckett represented Mr Mooney. At the conclusion of the hearing the parties were granted leave to file further written submissions in relation to a superannuation issue which arose during the course of argument. Those submissions have now been filed.

History of the proceedings

4 This case has a long history which was set out at paragraphs [3] to [5] of our earlier decision. In its decision on 19 March 2003 the Tribunal found that Mr Mooney had been employed by the Commissioner as an accountant from January 1988 until August 1995, when he resigned. The Tribunal concluded that the Commissioner contravened s 49D(2)(c) of the Anti-Discrimination Act1977 (the AD Act) by causing Mr Mooney to be constructively dismissed from his employment and, in the course of doing so, by discriminating against him on the ground of his disability. The Commissioner was found to have engaged in direct discrimination on the ground of disability, as defined in s 49B(1)(a) and (2) of the Act.

5 The Tribunal noted that at various times during his employment with the Commissioner, Mr Mooney suffered from “gall bladder disease, abdominal pain, osteo-arthritic knees, migraines, viral infections, gastrointestinal problems, diarrhoea and a chest infection”. The Tribunal found that the operative reason for the discrimination and the constructive dismissal was not any or all of the disabilities experienced by Mr Mooney but a characteristic that appertains generally to people who have Mr Mooney’s combination of disabilities, namely a tendency to take substantial amounts of sick leave. The Tribunal found that Mr Mooney had been given the impression by his supervisors that his sick leave record was unsatisfactory when, in fact, he had not taken any more leave than that to which he was entitled. The Tribunal concluded that Mr Mooney had been subjected to pressure to resign because of his sick leave record, and that the Commissioner’s conduct amounted to constructive dismissal when Mr Mooney ultimately resigned in response to that pressure.

6 The Commissioner was found to have contravened s 49D(2)(c) of the Act which renders it “unlawful for an employer to discriminate against an employee on the ground of disability…by dismissing the employee”. The Tribunal held that the concept of “constructive dismissal” fell within that statutory wrong.

7 The Commissioner appealed to an Appeal Panel against the Tribunal’s decision that Mr Mooney’s complaint was substantiated because it was satisfied that the Commissioner had contravened s 49D(2)(c) of the Act. That appeal was dismissed in our earlier decision.

The Tribunal’s decision in relation to damages

8 The Tribunal conducted its hearing in relation to Mr Mooney’s claim for damages on 6 August 2003. On 14 August 2003 the Tribunal handed down a decision in which it ordered the Commissioner to pay to Mr Mooney “the sum of $40,000 by way of damages for economic loss”. The only evidence presented at the hearing on 6 August 2003 was a written statement by Mr Mooney, who was not required for cross-examination. The Tribunal also took into account, as it was quite entitled to do, the evidence presented by Mr Mooney at the earlier hearing concerning liability. Mr Mooney sought an award of damages of $40,000, which is the maximum sum the Tribunal may order following a finding that a complaint is substantiated (see s 113(1)(b)(i) of the AD Act).

9 In submissions to the Tribunal the Commissioner challenged Mr Mooney’s claim for an award of damages of $40,000 on three grounds. They were: (1) Mr Mooney’s claimed loss of earnings had not occurred by reason of the Commissioner’s conduct, (2) the Tribunal should not accept Mr Mooney’s evidence that he would have continued working for a year beyond the date upon which he submitted his resignation and, (3) Mr Mooney unreasonably refused to mitigate his loss.

10 Counsel for the Commissioner submitted that the evidence revealed that Mr Mooney resigned from his job for a number of reasons, some of which were not related to the conduct which had been found to constitute unlawful discrimination. The Tribunal dealt with this submission at [10]:

Mr Mooney’s evidence was that he resigned for a combination of reasons, some of which the Tribunal has found to constitute unlawful discrimination and others which it has not. The general principles of damages for torts are relevant. The need for any damages to be “by reason of” the respondent’s conduct corresponds, in the law of tort, with the requirement for the loss or damage to be “caused” by the respondent’s unlawful conduct. Causation is essentially a question of fact to be determined by reference to common sense, experience and value judgments. The “but for” test is not a definitive test of causation (see March v Stramare (1991) 171 CLR 506). It is not necessary for us to determine whether “but for” the discriminatory conduct, Mr Mooney would have resigned anyway. It is apparent from Mr Mooney’s evidence that the conduct was a substantial factor in his decision to resign. In our view, that is sufficient to conclude that the economic loss suffered by Mr Mooney occurred “by reason of” the respondent’s discriminatory conduct.

11 Mr Mooney claimed damages for loss of wages for a period of 12 months from the date of his resignation, which was 18 August 1995. His evidence was that his wages during this period would have amounted to $45,792.55 had he remained in employment with the Commissioner. He stated that his only income during this period which should be taken into account when determining his net loss was a small sum which he received as payment for preparing income tax returns for other people. His net income from this source during the 1995/6 financial year was $365. It was $368 for the 1996/7 financial year. Mr Mooney stated that he received a fortnightly pension payment from the State Super Fund from 31 May 1995, which was the date of his 65th birthday. This was a sum of money which he received in addition to his salary, until his resignation on 18 August 1995. Those superannuation pension payments continued after his resignation. In late 1995 or early 1996 Mr Mooney successfully applied for an age pension. He received a part pension. During the 1995/6 financial year his taxable social security payments amounted to $1065.10. He received taxable social security payments of $2256.50 during the 1996/7 financial year. Mr Mooney argued that his superannuation and social security payments should not be taken into account when determining his net loss.

12 Mr Mooney gave evidence that prior to his resignation “I had intended to continue to work for the New South Wales Police Service for a further 1 to 2 years”. He also stated that, “I intended to re-assess the situation annually after the age of 65 and then decide when to retire”. The Tribunal accepted this evidence. After noting Ms Winters’ submission that the evidence was vague and should not be accepted, the Tribunal stated at [12]:

The Tribunal must make a finding, based on the evidence, as to the period that Mr Mooney would have continued working. It is true that Mr Mooney’s evidence is not explicit. That is because he did not know for sure how much longer he would have continued working. Nevertheless he gave an estimate of that period, being 1 to 2 years. Mr Mooney was not cross-examined in relation to that evidence and we accept that it is a genuine estimate of the time he would have continued working. Mr Mooney is claiming damages for one year, not two. Given his uncontroverted evidence on this point, we accept that estimate for the purpose of calculating economic loss.

13 The Commissioner submitted that Mr Mooney’s failure to mitigate his loss of income should be taken into account when determining the amount of damages to be awarded to him. It was argued that Mr Mooney had unreasonably refused an offer to withdraw his resignation and to remain in employment pending the outcome of an Internal Affairs investigation concerning his complaint about the manner in which he had been treated. When discussing the legal principles that governed its decision, the Tribunal noted at [8] that, “[w]hile an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant’s refusal to mitigate his or her loss was unreasonable”. The Tribunal dealt with the Commissioner’s submissions on this point when it stated at [15]:

Given the evidence and the submissions put by the parties, we are not satisfied that Mr Mooney’s refusal to accept the respondent’s offer of re-employment was unreasonable. He did not find out about the offer for nearly 4 months after he had tendered his resignation, his old job was not available and he did not know where he would be sent. Finally, it is understandable that Mr Mooney did not have faith in the objectivity of Internal Affairs investigation given that the police officers involved were from his old unit. Consequently the respondent has not established that Mr Mooney unreasonably failed to mitigate his loss.

14 The Tribunal ordered that the Commissioner pay Mr Mooney the sum of $40,000 by way of damages for economic loss. It stated at [16]:

…Mr Mooney is entitled to damages for economic loss in excess of $40,000. As the Tribunal does not have jurisdiction to order damages in excess of $40,000, that is the amount of damages that should be ordered.

15 The Commissioner included seven grounds of appeal in the Notice of Appeal. Six of these grounds were said to raise questions of law and the Commissioner also sought leave to review the merits of the decision.

16 Section 118 of the AD Act provides that a party may appeal to an Appeal Panel against a decision made under that Act by the Tribunal. Section 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) provides for an appeal as of right on a question of law. The leave of the Appeal Panel is needed for the merits of the Tribunal’s decision to be reviewed on appeal. Due to the wording of s 113(2) of the Tribunal Act, Appeal Panels have consistently held that it is necessary to identify an error law before leave to review the merits of the Tribunal’s decision may be granted (see e.g. Brandusoiu v Commissioner of Police [1999] NSWADTAP 8). Ms Winters questioned the correctness of Brandusoiu and the practice of subsequent Appeal Panels to rely upon it when considering whether to grant leave to appeal on the merits. She did not advance reasons why the reasoning in Brandusoiu was incorrect.

17 Section 113(2) of the Tribunal Act provides that an appeal may be made to an Appeal Panel on a question of law and that the Appeal Panel may grant leave for an appeal to “extend to a review of the merits of the appealable decision”. The use of the word “extend” in s 113(2)(b) conveys the impression that it is necessary for the Appeal Panel to find error of law before exercising the discretionary power to entertain an appeal on the merits. In the absence of argument about why Brandusoiu is wrong we propose to follow it. As we have determined that none of the appeal grounds on questions of law are made out, it follows that leave is not granted for the appeal to extend to the merits of the Tribunal’s decision. Even if it were unnecessary to find error of law before granting leave for the appeal to extend to the merits of the Tribunal’s decision, we are not satisfied that the Tribunal’s fact-finding process was flawed and should be re-visited.

18 At the hearing of the appeal, and in her written submissions, counsel for the Commissioner did not address the specific grounds of appeal set out in the Notice of Appeal. The grounds of appeal on questions of law in the Notice of Appeal were expressed as questions rather than as propositions concerning errors of law made by the Tribunal. As Mr Beckett did not object to the manner in which the grounds of appeal were expressed, or to the manner in which the Commissioner’s appeal was presented, we propose to deal with the arguments raised by Ms Winters in her written and oral submissions, rather than respond to each of the grounds of appeal in the Notice of Appeal.

19 In essence Ms Winters argued that the Tribunal had made errors of law when responding to the three submissions she had made to the Tribunal on the question of damages. They were: (1) the actions of the Commissioner did not cause Mr Mooney’s loss of wages, (2) Mr Mooney did not satisfy the onus cast upon him by law of proving his loss with sufficient certainty, and (3) Mr Mooney did not take all reasonable steps to mitigate his loss. Ms Winters also submitted that the Tribunal erred in law by failing to deduct social security and superannuation payments from the sum of money which it calculated as representing Mr Mooney’s economic loss. In dealing with these arguments we propose to adopt the sub-headings used by counsel in their written submissions.

Causation

20 Ms Winters submitted that “the Tribunal erred in law in its construction of the test of causation, and the application of that test to the facts”. This submission appeared to encompass the appeal grounds numbered 1, 2 and 5. Ms Winters argued that the Tribunal incorrectly interpreted s 113(1)(b)(i) of the AD Act which permits the Tribunal to make an order for the payment of compensation following a finding that a complaint is substantiated. She submitted, relying upon statements in March v Stramare (1991) 171 CLR 506, that the Commissioner could not be held liable for loss claimed by Mr Mooney if that loss would have occurred in the absence of any unlawful discrimination by the Commissioner. According to Ms Winters, the Tribunal did not acknowledge this limitation upon its power to make an order for compensation in Mr Mooney’s favour and it did not apply it when making findings of fact about Mr Mooney’s loss. She submitted the evidence revealed that the conduct of the Commissioner which was found to constitute unlawful discrimination was not the effective cause of the event which resulted in Mr Mooney’s loss.

21 The loss which Mr Mooney claimed, and for which he was awarded compensation by the Tribunal, was loss of earnings for 12 months from the date upon which he left his employment with the Commissioner. Whilst Mr Mooney was the moving party in terminating his contract of employment with the Commissioner, the event which he claimed triggered his economic loss – losing his job - was found by the Tribunal to constitute the statutory wrong of (constructive) dismissal from employment on the ground of disability. The Tribunal found that the Commissioner had contravened s 49D(2)(c) of the AD Act by discriminating against Mr Mooney on the ground of disability when dismissing him from employment. Ms Winters submitted that despite this finding, the evidence revealed that Mr Mooney would have left his job for other reasons and that the Commissioner should not be required to compensate Mr Mooney for a loss which was not attributable to his (the Commissioner’s) actions.

22 Mr Beckett submitted that the conduct of the Commissioner which caused Mr Mooney to suffer loss was dismissing him from employment in breach of the AD Act. The Tribunal found that the Commissioner had dismissed Mr Mooney and this finding was upheld on appeal. It was the act of dismissing Mr Mooney which caused the Tribunal to order that he be compensated for loss, which was the economic loss of being without a salary. According to Mr Beckett, the Commissioner was seeking to re-open an issue that was closed, namely whether the Commissioner had constructively dismissed Mr Mooney in breach of the AD Act.

23 Section 113(1)(b) of the AD Act provides that after finding a complaint substantiated, the Tribunal may “order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”. This appeal requires us to examine the meaning of this statutory grant of power and, in the course of so doing, to consider the extent to which common law rules concerning the determination of damages payable to a successful plaintiff in an action in tort govern the exercise of this power. In the first instance, when dealing with what the parties described as the ‘causation’ issue, we must determine how the Tribunal should determine whether any loss or damage for which the complainant seeks compensation might be held to be suffered by reason of the respondent’s conduct.

24 In earlier times some judges, starting from the proposition that a complaint of unlawful discrimination is akin to an action in tort, held that the common law rules which govern the award of damages in actions in tort were applicable to discrimination cases. In Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65, Lee J, when discussing the heads of damages which may awarded under s 113(1)(b)(i) of the AD Act, stated that “there are sound reasons for treating an action under the Act as an action in tort…”sx His Honour referred to statements made by McHugh JA in Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604 to the effect that an action under the AD Act was a tort, as authority for his finding concerning the heads of damages which may be available in a discrimination case. Sully J adopted this approach in Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745. Wilcox J expressed a similar view when sitting as a member of the Full Court of the Federal Court in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, which was a case in which the extent of the power granted to the Human Rights and Equal Commission (HREOC) by (the now repealed) s 81 of the Commonwealth Sex Discrimination Act 1984 to make recommendations about compensatory payments was in issue.

25 In more recent times some judges have rejected the characterisation of a complaint of unlawful discrimination as a statutory tort. In Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245-246, Spigelman CJ, after acknowledging that his remarks were obiter, stated that “…I should indicate that I do not share the opinion expressed by McHugh JA, and adopted by Lee J and Sully J, that a complaint leading to an order of payment of “damages…by way of compensation” under s 113(1)(b)(i) constitutes a “tort” within the meaning of s 8 of the Law Reform (Vicarious Liability) Act.” The Chief Justice explained the reasoning behind these remarks at some length and concluded that the word “tort” in the Law Reform (Vicarious Liability) Act “is concerned with causes of action that can be enforced in courts”. Davies A-JA agreed with Spigelman CJ, whilst Stein JA expressed a desire to confront the issue on another day.

26 French J, in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 264, made some detailed observations about this issue which are similar to the comments of Spigelman CJ in Russell. When discussing HREOC’s former power to recommend awards of damages under Commonwealth anti-discrimination statutes, French J stated:

Having found the complaint substantiated, the President was empowered by s 81(1)(b)(iv) to make a declaration that Sheiban pay to each of the women “damages by way of compensation for any loss or damage suffered by reason of” his conduct. The damage which may be so compensated extends by force of s 81(4) to “injury to the complainant’s feelings or humiliation suffered by the complainant”. Its measure is to be found, not in the law of tort, but in the words of the statute which require no more to attract the exercise of the Commission’s discretion than that the loss or damage be “by reason of” the conduct complained of. That is not to say that every adverse consequence, however remote, is to be compensated. For in this context, as in the wider reaches of the law, “causation is to be understood as the man in the street, and not as either the scientist or metaphysician would understand it”: Yorkshire Dale Steam Ship Co Ltd v Minister of War Transport [1942] AC 691 at 706, per Lord Wright. And within the cause-effect framework created by the words of the statute the selection of effects which give rise to liability may be influenced by policy and not merely by logic. In this regard the reasoning of Gummow J in relation to s 82 of the Trade Practices Act 1974 (Cth) is of assistance: Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 75 ALR 271 at 279; 16 FCR 410; see also Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 and Pavich v Bobra Nominees Pty Ltd (1988) ATPR (Digest) 46-039.

There are decisions on anti-discrimination legislation which treat its contravention as a species of tort and approach the measure of damages accordingly: Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65, per Lee J; Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604, per McHugh JA. Whether that classification is strictly correct or not, the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it. It may be that while there are events for which the conduct complained of is a sine qua non, they would not be recognised in any practical sense as arising “by reason of” it. Exclusion principles analogous to concepts of remoteness, and failure to mitigate may then be seen to operate. In the end, however, these are to be subsumed in a practical judgment of cause and effect.

27 We believe that the views of Spigelman CJ and French J should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent’s conduct, but they are not controlling.

28 Support for this view is found in decisions of the High Court concerning the means by which a court should determine whether a defendant may be held liable to compensate a successful plaintiff for loss or damage sustained by reason of a contravention of various provisions in the Trade Practices Act 1974 (Cth). That Act creates numerous statutory rights and obligations. Section 82 of the Act permits “a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V” to recover compensation for that loss or damage.

29 The High Court considered the meaning of s 82 of the Trade Practices Act 1974 (Cth) in Henville v Walker (2001) 206 CLR 459. Gleeson CJ explained how that section should be interpreted:

Section 82 of the Act is the statutory source of the appellants’ entitlement to damages. The only express guidance given as to the measure of those damages is to be found in the concept of causation in the word “by”. The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case…The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act.

30 In that case the entire Court held that when a defendant has been found to have contravened a relevant provision in the Trade Practices Act 1974, s 82 permits an order for the payment of damages in response to the defendant’s contravention of the Act even when there are concurrent causes of the plaintiff’s claimed loss. After noting (at 490) that “[t]he common law concept of causation recognises that conduct that infringes a legal norm may be causally connected with the sustaining of loss or damage even though other factors may have contributed to the loss or damage”, McHugh J went on to state (at 496, fn 98) that in the case before him, “[t]he issue is not what caused the loss, but whether the defendant’s conduct can be properly said to be a cause of the loss”.

31 McHugh stated (at 493) that the “principles that assist tribunals of fact in deciding causation issues” may be described as follows:

If the defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.

32 In this case Mr Beckett was correct when he argued that the Commissioner cannot re-visit the Tribunal’s finding that his unlawful behaviour caused Mr Mooney to be dismissed from employment. It was open to the Commissioner to argue, however, that despite that finding the Commissioner should not be held liable for Mr Mooney’s loss of wages for a 12-month period because Mr Mooney would not have remained in employment during that period even if the unlawful discrimination had not occurred. On the facts of this case the argument was that regardless of the unlawful actions of Mr Mooney’s supervisors, he would have resigned anyway, because of his difficult relations with his supervisors and his various health problems. The Tribunal acknowledged that argument and, after referring to the evidence, concluded that the Commissioner’s conduct “was a substantial factor in his [Mr Mooney’s] decision to resign”.

33 In view of the fact that the issue before the Tribunal was a claim for economic loss following a finding that a complaint of unlawful discrimination was substantiated, it would have been more accurate for the Tribunal to have expressed its conclusion about the sufficiency of the connection between the loss claimed by Mr Mooney (his loss of wages) and the relevant conduct of the Commissioner (his contravention of s 49D(2)(c)), rather than about the sufficiency of the connection between the response by Mr Mooney to the contravention of the Act and the event which precipitated his claimed economic loss. But, on the facts of this case, nothing turns on the failure to identify the precise point at which causation had to be established.

34 Counsel for the Commissioner did not cross-examine Mr Mooney about his health, his relations with his supervisors, or his statement that he had intended to work for the NSW Police Service for a further one to two years beyond 18 August 1995, which was the date upon which he was constructively dismissed. The Commissioner did not lead any evidence to contradict Mr Mooney’s evidence that the Commissioner’s unlawful conduct caused his loss yet, as Gaudron J stated in Henville v Walker (2001) 206 CLR 459 at 483, “it is for the person whose contravening conduct materially contributed to the loss or damage to establish what component of that loss or damage is referable to some act or event other than his or her contravening conduct and not for the person who suffers loss or damage to establish the precise component or components referable to that conduct”.

35 In view of the comments made by members of the High Court in Henville v Walker (2001) 206 CLR 459 we believe that the Tribunal applied a measure of causation more favourable to the Commissioner than it was required by law to do when it concluded that there was “a substantial” connection between the Commissioner’s breach of the AD Act and the event which led to Mr Mooney’s claimed loss. All that it was necessary for the Tribunal to find was that the Commissioner’s contravention of the AD Act materially contributed to Mr Mooney’s economic loss. To return to the language of the statute, such a finding would have been sufficient to permit the Tribunal to order the Commissioner to compensate Mr Mooney for loss suffered by reason of the respondent’s conduct.

36 There is no substance to the Commissioner’s first challenge to the Tribunal’s decision.

Lack of certainty

37 The Commissioner’s second argument was that Mr Mooney did not satisfy the onus cast upon him by law of proving his loss with sufficient certainty. This argument appears to encompass Appeal Ground No 2. Ms Winters did not identify any relevant principle of law which the Tribunal failed to apply, and nor did she identify any conclusion reached by the Tribunal which indicated that it had fallen into legal error when making findings of fact. Her argument was that this was a case where damages were claimed for past economic loss and that the law requires greater certainty of proof in such cases than it does when the claim is for future pecuniary loss. In effect this submission is a challenge to the finding of fact made by the Tribunal concerning the period during which Mr Mooney would have remained in employment with the Commissioner had he not been constructively dismissed in breach of the AD Act.

38 As with every other fact in issue in a case before it, the Tribunal must be satisfied on the balance of probabilities that a successful applicant in a discrimination case has sustained the economic loss he or she claims. Another way of making the same point is to say that any loss claimed by a successful applicant in a discrimination complaint must be proved with a reasonable degree of certainty (see Bonella v Wollongong CityCouncil [2001] NSWADT 194 at [119]). That statement reflects the position at common law where a plaintiff in an action in tort or contract must prove his or her damages with reasonable certainty (see M Tilbury, Civil Remedies, Volume One: Principles of Civil Remedies (1990) at 150-151). It is self-evident that, in most cases, the Tribunal may reasonably expect an applicant to present evidence which more readily satisfies it on the balance of probabilities, or which conveys a higher degree of certainty, when his or her claim is for compensation for past loss rather than for damages for some projected future loss.

39 In this case Mr Mooney claimed damages for loss of wages from the date his employment was terminated until an estimated date of retirement. Mr Mooney gave evidence that he had intended to work for a further one or two years beyond the date when he was constructively dismissed. His counsel limited the claim for economic loss to a period of 12 months, no doubt because even that claim exceeded the statutory ceiling of $40,000 in this jurisdiction.

40 Mr Mooney’s claim for economic loss was similar to one which could be made at common law in some instances. When a contract of employment is not terminable with notice, a wrongfully dismissed employee may claim damages for wages lost up to the likely date of retirement (see B Creighton and A Stewart, Labour Law: An Introduction (3rd ed) (2000) at 307). A court is required, however, when considering such a claim to take into account “foreseeable events which might have brought the employment to an end” (Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 484).

41 Ms Winters submitted that Mr Mooney did not prove with sufficient certainty that he was fit enough to work during the period for which he claimed loss of wages. We have already dealt with the Commissioner’s arguments concerning events, other than the contravention of the AD Act, which may have brought the employment relationship to an end. It was open to the Commissioner to cross-examine Mr Mooney about his level of fitness, or to present evidence which indicated that he was not well enough to work beyond 18 August 1995. In the absence of conflicting evidence, or a challenge to the veracity of Mr Mooney’s evidence, the Tribunal was quite entitled to accept the lower end of his estimate concerning the period of time he had intended to continue to work and to conclude that he was physically able to work during this period.

42 There is no substance to this ground of appeal.

Mitigation

43 The Commissioner’s third submission was that the evidence revealed that Mr Mooney failed to take reasonable steps to mitigate his loss of earnings. This submission appears to encompass the appeal grounds numbered three and four. Ms Winters did not identify any relevant principle of law which the Tribunal failed to apply and nor did she identify any conclusion reached by the Tribunal which indicated that it had fallen into legal error when making findings of fact. The submission was a challenge to findings of fact made by the Tribunal concerning the effect of Mr Mooney’s failure to co-operate with a Police Internal Affairs inquiry into his complaint, and his failure to respond to an offer that he withdraw his resignation pending the outcome of that investigation upon his claim for loss of wages. We believe that Mr Beckett was correct when he submitted that this challenge to the Tribunal’s decision was an attack upon the merits of that decision rather than a claim that the Tribunal had misinterpreted or misapplied the law.

44 Nevertheless, in view of the fact that the case proceeded before the Tribunal on the basis that the common law principles concerning mitigation of damages governed the Tribunal’s decision, we should respond briefly to the Commissioner’s submission. It follows from what we have said previously that common law rules do not govern this issue. As Gleeson CJ observed in Henville v Walker (2001) 206 CLR 459 when discussing s 82 of the Trade Practices Act 1974 (Cth), and as we said at [27] when considering s 113(1)(b)(i) of the AD Act, common law principles may provide assistance when seeking to interpret the statutory power to make orders for compensation, but they are not controlling. Section 113(1)(b)(i) of the AD Act gives the Tribunal the power to order the respondent to compensate the complainant for any loss or damage suffered by reason of the respondent’s conduct. As French J pointed out in Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 264 when considering a similarly worded power in the Sex Discrimination Act 1984 (Cth), “exclusion principles analogous to concepts of remoteness, and failure to mitigate” may qualify a practical judgment of whether the claimed loss occurred by reason of the respondent’s conduct.

45 In this case, where the claim was for loss of wages for a period of 12 months, it was quite appropriate for the Tribunal to consider whether some of that loss occurred by reason of Mr Mooney’s failure to take reasonable steps to find an alternative source of income, rather than by reason of the Commissioner’s unlawful conduct. In other cases it may not be appropriate for the Tribunal to take this approach for, as Spigelman CJ observed in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245, “denunciation, punishment and deterrence”, as well as compensation, are primary purposes of the AD Act. The need to denounce, punish or deter may sometimes render it inappropriate for the Tribunal to consider whether an applicant has reasonably mitigated his or her loss when determining the measure of damages to be awarded.

46 When considering whether any of Mr Mooney’s claimed loss occurred by reason of his own conduct rather than that of the Commissioner, the Tribunal applied the common law principle that “[w]hile an applicant has a duty to mitigate damages, the burden is on the respondent to prove that the applicant’s refusal to mitigate his or her loss was unreasonable”. It was appropriate to apply that principle in this case. The Tribunal fairly evaluated the evidence concerning the Internal Affairs investigation and the offer that Mr Mooney withdraw his resignation pending the outcome of that investigation, and then concluded that “the respondent has not established that Mr Mooney unreasonably failed to mitigate his loss”. There was no error of law in the Tribunal’s finding.

47 At the hearing of the appeal Ms Winters also challenged the manner in which the Tribunal calculated Mr Mooney’s loss. Whilst this was not a ground raised in the Notice of Appeal, and nor was there an application to amend the appeal grounds, Mr Beckett did not object. Ms Winters submitted that Mr Mooney’s social security and superannuation income, as well as his earnings from preparing tax returns, should have been deducted from the figure which the Tribunal determined represented Mr Mooney’s loss.

48 When determining what may constitute the “loss” for which a successful applicant in a discrimination case may be compensated by an order for the payment of damages, the Tribunal should apply what is referred to in tort law as the compensatory principle. Whilst Spigelman CJ pointed out in Harriton v Stephens [2004] NSWCA 93 at [7] that the principle is capable of being stated in different terms, which sometimes produces different outcomes when it is applied, it is common to refer the explanation of the principle by Mason CJ, Dawson, Toohey and Gaudron JJ in Haines v Bendall (1990) 172 CLR 60 at 63:

The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed…

49 Those justices also observed in the same case (at 63) that “a plaintiff cannot recover more than he or she has lost”. In this case Mr Mooney lost the income from his wages because of the Commissioner’s unlawful conduct. He should be compensated for that loss because it was sustained by reason of the Commissioner’s conduct, but any income which he received only because he was no longer employed should be deducted from the final calculation of his damages for “loss” because to do otherwise would be to permit him to recover more than he has lost. This statement is clearly subject to the provisions of any statutory regime under which Mr Mooney received payments because he was not earning a wage and which provided that he was obliged to refund those payments in the event that he received compensation for his actual loss of wages.

50 Mr Mooney conceded that had he remained as an employee of the Commissioner from 18 August 1995 until 17 August 1996 he would not have received the small sum of money which he earned from preparing tax returns for others. He would also not have received a part age pension had he remained in full-time employment because the income from his salary would have rendered him ineligible to receive an age pension (see s 1064 Social Security Act 1991 (Cth)). Both of these sums should be deducted from the final calculation of “loss”. The Tribunal did not directly address this issue because it did not need to do so. Mr Mooney’s claim for loss amounted to $45,792.55 and both of these sums together did not reduce the net loss figure to the statutory ceiling of $40,000.

51 The superannuation payments which Mr Mooney received during the 12-month period after he was constructively dismissed should not be deducted from his loss as this was not income which he received because he was no longer employed. Mr Beckett drew our attention to s 52W(2A) of the Superannuation Act 1916 (NSW) which permitted a State public sector employee in Mr Mooney’s position to receive both a pension and a wage if that person remained in State employment after turning 65. In paragraph 45 of his affidavit sworn on 10 December 2002, Mr Mooney stated: “On 31 May 1995 I turned 65. On the first payday after this date I began to receive a fortnightly pension from the State Super Fund in addition to my salary”. Ms Winters was incorrect when she submitted that Mr Mooney had not elected to receive superannuation payments prior to leaving his employment with the Commissioner. The loss of wages which Mr Mooney sustained by reason of the Commissioner’s contravention of the AD Act had no effect upon his entitlement to receive superannuation payments.

52 There is no substance to the submission that the Tribunal incorrectly calculated Mr Mooney’s loss.

Costs

53 Mr Beckett made an application for costs in the event that the appeal was dismissed. Ms Winters opposed the application. When determining an appeal on a question of law an Appeal Panel has the power to “make such orders as it thinks appropriate in light of its decision” (s 114(1) Tribunal Act). This provision clearly includes a power to make an order concerning payment of the costs of the appeal. In Tu v University of Sydney (No 2) [2002] NSWADTAP 25 it was held that an Appeal Panel has the same costs power as the Tribunal at first instance. Whilst it is arguable that s 114(1) of the Tribunal Act grants an Appeal Panel an unfettered power to make whatever costs order it thinks appropriate in light of its decision, we propose to follow the narrower approach advocated in Tu when determining this costs application. This means that s 114 of the AD Act governs our discretionary power to make a costs order because, in cases before the Equal Opportunity Division, the power granted to the Tribunal at first instance by s 88 of the Tribunal Act to make a costs order is supplanted by the express grant of power in the AD Act (see s 88(1) of the Tribunal Act).

54 Section 114(2) of the AD Act permits the Tribunal to make an order for costs if it is “of the opinion in a particular case that there are circumstances that justify it doing so”. This power must be exercised bearing in mind the presumption set out in s 114(1) that, except where s 114(2) applies, each party should pay his or her own costs. The power to make a costs order pursuant to s 114 of the AD Act is clearly broader than the power granted to the Tribunal by s 88 of the Tribunal Act which may be exercised only when the Tribunal “is satisfied that there are special circumstances warranting an award of costs”.

55 We have decided that there is no substance to any of the appeal grounds. The grounds which we have considered under the headings of ‘Lack of certainty’ and ‘Mitigation’ were really challenges to the merits of the Tribunal’s decision rather than challenges to the Tribunal’s identification and application of the relevant legal principles. When dealing with the issue of ‘Causation’ the Tribunal applied a test more favourable to the Commissioner than it was required by law to do.

56 Whilst the award of damages was the maximum sum which the Tribunal could award, that sum is not substantial. The Legal Aid Commission of NSW has represented Mr Mooney throughout these proceedings. We were informed by Mr Beckett that Mr Mooney’s grant of aid was subject to the usual condition that he may be required to pay his legal costs from any damages award made in his favour. Whilst there was no evidence about this matter in proper form, Ms Winters did not object to this information being conveyed to us by counsel.

57 The lack of substance to the appeal and the possibility that the amount of money which Mr Mooney will ultimately receive by way of compensation may be significantly reduced by the costs of opposing the appeal have lead us to conclude that Mr Mooney is entitled to an order for costs in his favour.

Orders

58 The Tribunal makes the following orders:

1. Appeal dismissed.

2. The appellant to pay the respondent’s costs of the appeal.

3. If the parties are unable to agree on the amount of costs, that sum is to be determined by a costs assessor in accordance with the LegalProfession Act 1987.