Commissioner of Police v Reid
[2000] TASSC 181
•18 December 2000
[2000] TASSC 181
CITATION: Commissioner of Police v Reid [2000] TASSC 181
PARTIES: COMMISSIONER OF POLICE
v
REID, Samantha
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 73/2000
DELIVERED ON: 18 December 2000
DELIVERED AT: Hobart
HEARING DATE: 5 December 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Discrimination Law - State provisions - Tasmania - Discrimination on the basis of gender - Complaint - Jurisdiction of Sex Discrimination Commissioner to accept complaint - Form of complaint - Whether sections impose mandatory requirements.
Sex Discrimination Act 1994 (Tas), ss34, 39, 48.
Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805; Waters v Public Transport Corporation (1991) 173 CLR 349; I W v City of Perth (1996 - 1997) 191 CLR 1; Qantas Airways Ltd v Christie (1998) 193 CLR 280; Montreal Street Railway Company v Normandin [1917] AC 170, referred to.
Aust Dig Discrimination Law [17.5]
REPRESENTATION:
Counsel:
Appellant: M M G Miller
Respondent: R A Connock
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Clarke & Gee
Judgment Number: [2000] TASSC
Number of paragraphs: 19
Serial No 181/2000
File No LCA 73/2000
COMMISSIONER OF POLICE v SAMANTHA REID
REASONS FOR JUDGMENT COX CJ
18 December 2000
This is an appeal pursuant to the Anti-Discrimination Act 1998, s100(3), against a determination on a question of law under s86(4) of that Act. It arises out of the referral by the Sex Discrimination Commissioner ("the Commissioner") on or about 1 December 1999 of a complaint or a number of matters of complaint accepted under the Sex Discrimination Act 1994 ("the Act"). The Act was repealed by the Anti-Discrimination Act 1998, which commenced nine days later on 10 December 1999, and by virtue of the transitional provisions of the latter Act, Sch 2, cl 2, the complaint became a complaint referred to the Anti-Discrimination Tribunal ("the Tribunal"). The Chairperson of that Tribunal, on 22 August 2000, made a number of determinations on questions of law arising under the Act, which are the subject of this appeal.
On 23 February 1999, a Complaint Lodgment Form, in writing and signed by the respondent, was lodged with the Commissioner. The Act, s34, provides:
"34 (1) A complaint is to -
(a) be made in writing and signed by the complainant; and
(b) identify the person, class of persons or organization against whom the alleged discrimination or prohibited conduct was directed and against whom the complaint is made; and
(c) set out details of the alleged discrimination or prohibited conduct; and
(d) be lodged with the Commissioner or sent to the Commissioner by post.
(2)The Commissioner may provide procedural advice and assistance to any person who requires assistance to make a complaint."
The Complaint Lodgment Form contained a question:
"Who do you think has discriminated against you?
(For example, the person or company that employs you, a business or office providing goods or service, the owner and/or their agent for your accommodation, a school, university, TAFE, or club)."
Against the printed words "Business/Organisation name" and "Their address" respectively, the respondent inserted "Police Academy ¾ Training" and "Rokeby". Against the printed questions "If the alleged discrimination is or was ongoing, please indicate: Date of first incident: and Date of last or latest incident:", the respondent inserted "Friday 6 February 1998" and "ongoing" respectively, and against a further question "Is the alleged discrimination/harassment still ongoing?" she inserted "Yes". The location of the alleged discriminatory incident/s was filled in as "Police Academy" and against the question "What do you think was the basis (ground) of the discrimination?" appeared a number of boxes to be ticked where applicable, indicating "Sex or gender; Marital status; Pregnancy; Parental status; Family responsibilities; Prohibited conduct, harassment or sexual harassment; Promoting prohibited conduct or discrimination; Victimisation because of making or supporting a complaint of discrimination; and Other (please explain)". In this last section of the form, the respondent placed the words "Denied graduation from Police Training Course 2/97 on unfounded grounds". Employment/work and education and training were also indicated as the area of activity where the discrimination took place. In the body of the form, the subject matter of the respondent's dissatisfaction was revealed as the fact that shortly before she was due to graduate as a police constable at the conclusion of course No 2 of 1997, she had been told that she was not permitted to graduate because of adverse reports, that she had had to cancel the visit of her own family and friends to the graduation ceremony, but had been required to be present while her course mates were sworn in and that a requisition for special running shoes needed by her for physical education training had not been filled. She claimed in respect of the last matter that a male member who had submitted a similar requisition, received the shoes he had ordered whereas she had received standard shoes and in respect of the refusal to allow her to graduate, that male members of the course had had worse reports and lower assessments on the way through the course than she had.
On 20 March 1998, the General Secretary of the Police Association of Tasmania, Mr Le Fevre, wrote to the Commissioner in the following terms (formal parts omitted):
"I write to afford you an update on this matter and unfortunately, on this occasion to detail what I believe to be further discrimination or victimisation against our member.
As part of the processes toward the graduation of course 3/97 to which Samantha was assigned when she was denied her graduation from course 2/97, the course members were recently asked to submit reports as to their preference for postings after graduation. Samantha was present when this took place and asked the instructing sergeant whether she should also submit such a report, to be met with the comment 'No that won't be necessary because we already know where you want to go'.
Samantha has now been given written notice (copy attached) that she will be assigned to North Western District (Devonport).
She feels that with five single members being assigned to the Northern District and the Police Department being aware of her personal circumstances she is being further discriminated against or victimised because the posting will remove her from the support mechanisms provided by her mother and fiance in Launceston as she settles into her new career. She will also be required to remove her son from his current circumstances and find alternatives for him at Devonport, which will be exceedingly difficult in the context of her working rotational shift rosters."
On 13 May 1998, the respondent wrote to one of the investigations officers of the Commissioner advising (inter alia) that she had been advised in writing by the Commissioner of Police that she would not be sworn in as a constable at the conclusion of the then current recruit course No 3 of 1997 and would not be participating in the graduation ceremony. Further, she was to be stood down on full pay and was directed to remove herself from the Academy. The letter concluded:
"Today I reported back to the Police Academy as directed and was served with a notice of dismissal.
I was then directed to clear my Academy room and after doing so had the plastic bag (which contained my coat hangers) searched, had the shirt I was wearing (a police uniform issue one) taken from me and was directed to hand in the sports shoes I was wearing thus leaving me bare foot for the remainder of the day until I can get back to Launceston.
I visited my Bank in Hobart with a view to obtaining money to replace my footwear but I was there advised that no funds had been deposited in my name even though my suspension order recorded that I would be on full pay throughout the period."
The following further provisions of the Act are relevant:
"39 If the Commissioner accepts a complaint, the Commissioner, within 10 days of accepting it, is to -
(a) notify the respondent of that acceptance; and
(b) provide the respondent with reasons for accepting the complaint; and
(c) give the respondent -
(i) a summary of the complaint; or
(ii) with the consent of the complainant, a copy of the complaint.
…
41 (1) The Commissioner or an authorized person may investigate a complaint in any manner that is appropriate to the circumstances.
…
48 (1) The Commissioner or an authorized person is to refer a complaint for inquiry if the Commissioner or authorized person -
(a) believes the complaint cannot be resolved by conciliation; or
(b) has attempted to resolve the complaint by conciliation but has not been successful; or
(c) believes that the nature of the complaint is such that it should be referred for inquiry.
(2) The Commissioner or an authorized person is to refer a complaint within 6 months of the date of a notification under section 39 (a) or within any further period agreed with the complainant regardless of whether an investigation has been completed.
(3) The Commissioner or an authorized person is to notify the respondent of any further period agreed under subsection (2).
(4) A referral for inquiry is to be accompanied by a report relating to any investigation made into the complaint.
…
(6) The Commissioner or an authorized person is to give a copy of the report to the complainant and the respondent."
It appears the report referred to in s48(4) was dated 29 November 1999 and accompanied the referral under the Act on 1 December 1999. The Anti-Discrimination Commissioner, appointed under the new Act, filed with the Tribunal set up under that Act on 5 January 2000, a document entitled "Referral Report". This set out the five issues referred to the Tribunal, identifying them as follows:
"1Whether Ms Reid was directly discriminated against on the basis of gender when she was prevented from graduating from Course 2/97 at the Police Academy;
2Whether the prevented graduation amounted to humiliating and insulting conduct on the basis of gender contrary to section 17(1) of the Anti-Discrimination Act 1998;
3Whether the failure of Ms Reid to be provided with special shoes, instead of the standard issue shoes, amounts to direct discrimination on the basis of gender.
4Whether the requirement that Ms Reid be posted to Devonport instead of Launceston amounts to indirect discrimination on the ground of family responsibilities;
5Whether Ms Reid was victimised contrary to section 18(1) of the Anti-Discrimination Act 1998 during the return of her police uniform, prior to her departure from the Police Academy."
At a directions hearing presided over by the Chairperson of the Tribunal, the appellant's counsel submitted that the Tribunal had no jurisdiction to enquire into any of the above five issues. In substance, the claim was that the document in which the first three issues were said by the respondent to be raised was deficient in form and failed to constitute a complaint within the meaning of the Act, s34, because it did not identify the person or organization against whom the alleged discrimination was directed and against whom the complaint was made and because it did not set out details of the alleged discrimination or prohibited conduct. As to the fourth issue, it was said that Mr Le Fevre's letter of 20 March 1998 was not a complaint within the meaning of that section and that in any event, the Commissioner had not notified the respondent in compliance with s39. In respect of the fifth issue, it was submitted that the respondent's letter of 13 May 1998 was a new matter of complaint which did not comply with s34 and in respect of which the Commissioner had again failed to notify the respondent in accordance with s39 and furthermore there had been a failure to comply with s48(2) and (3) because that complaint had not been referred to the Tribunal within six months of any notification under s39(a) (of which it was said there was none) or with any further period agreed with the respondent. Furthermore, if such an agreement had been made, it was claimed that the appellant had not been notified of it as required by s48(3). The Chairperson of the Tribunal ruled against these submissions and held that the Tribunal had jurisdiction in respect of each issue. I deal now in turn with the grounds of appeal.
Ground 1
"The Tribunal erred in ruling that the Complaint Lodgment Form 1998 lodged with the Sex Discrimination Commissioner by the Respondent on 25 February 1998 constituted a valid complaint under Section 34 of the Sex Discrimination Act 1994."
The appellant first submits that the complaint in respect of issues 1 to 3 is invalid because it fails, as required by s34, to identify the person, class of persons or organization against whom the complaint is made. In one section, as I have already noted, the Complaint Lodgment Form indicated that the person or company the respondent considered had discriminated against her was "Police Academy ¾ Training" whose address was given as "Rokeby". However, in the body of the form there is ample material from which it can be seen that various officers of that institution concerned in the training of recruits for induction into the Tasmania Police Force are alleged to have been involved in discrimination or prohibited conduct. Many of them are identified by police rank. It would be obvious to any reader of the complaint that the proper authority having responsibility for the Academy and the named officers is the person or organization against whom the complaint is made. This is beneficial and remedial legislation concerned with Human Rights.
"In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose." (Waters v Public Transport Corporation (1991) 173 CLR 349, per Mason CJ and Gaudron J at 359.)
See also Qantas Airways Ltd v Christie (1998) 193 CLR 280, where Kirby J said at 332:
"Remedial legislation, designed to achieve the high public purpose of upholding equal opportunity, should be construed beneficially and not narrowly. Any other approach risks frustrating the will of Parliament."
and I W v City of Perth (1996 - 1997) 191 CLR 1, where Brennan CJ and McHugh J said at 15:
"Many persons think that anti-discrimination law still has a long way to go. In the meantime, courts and tribunals must faithfully give effect to the text and structure of these statutes without any preconceptions as to their scope. But when ambiguities arise, they should not hesitate to give the legislation a construction and application that promotes its objects."
The purpose of the legislation is not only "to prohibit discrimination and other specified conduct", but "to prohibit discrimination and other specified conduct and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to discrimination and prohibited conduct" (the Act, long title). The Commissioner's jurisdiction to commence an investigation comes initially from a complaint of discrimination or prohibited conduct. That complaint does not require the precision of a formal document such as an indictment or civil pleading. It does not have to be served on the person or organization complained against. The term "respondent" is defined in s3 as a person or organization against whom a complaint is made. The appellant argues that the Commissioner has no right to nominate a respondent. I do not accept this. It is for the Commissioner to determine, from the material available in the complaint lodged or otherwise available (see the Act, s6(1) which enables the Commission "to collect and analyse data relating to complaints made in relation to discrimination and prohibited behaviour"), the person or organization against whom a complaint is made and hence the appropriate respondent to notify under s39. The name of the person or organization concerned may not be known to the complainant, but if he or she can provide in the complaint sufficient information to enable that person or organization to be ascertained, that will be sufficient to satisfy that requirement for the Commissioner's jurisdiction to be seized of the matter and to commence an investigation. The information provided by the respondent to this appeal in her Complaint Lodgment Form was adequate for that purpose. In the whole history of the lengthy correspondence between the appellant's counsel and the Commissioner, there has never been any suggestion that the Commissioner of Police is not the appropriate legal authority having ultimate responsibility for the conduct of the Police Academy and of the officers named in the form.
The second objection is that the complaint does not identify the alleged discrimination and prohibited conduct or give details of it. In Nestle Australia Ltd v Equal Opportunity Board [1990] VR 805, Vincent J considered similar legislation and the question whether the documents before the board contained "details of the alleged act of discrimination". At 812, he said:
"… in dealing with this question it is important to avoid the adoption of an unduly restrictive or pedantic interpretation of the document. As the board itself indicated when it stated that it followed the approach earlier adopted in O'Callaghan v Loder (1984) EOC 92-022: 'The complainant must identify the contravention but it need not allege the relevant facts with the particularity of a pleading or indictment.' This position is, I think, consistent with the overall approach the legislature has adopted in relation to the legislation under consideration."
At 813, he said:
"Although the lack of particularisation in the complaints under consideration or the fact that they do not refer to relevant sections in the Act or attempt to relate the alleged acts of discrimination to grounds which are specified in the Act do not constitute a bar to the invocation of the board's jurisdiction, it is nevertheless necessary for the acts which have been identified in the complaints to be such that a preliminary recognition of jurisdiction can be made."
In my view, the document constituting the complaint in respect of the first three issues does give sufficient detail to invoke the Commissioner's jurisdiction. Among other things, the form raises the following matters of complaint:
(a)that the respondent was prevented from graduating from her training course by the appellant at short notice in circumstances where the respondent "firmly believed that male members of the course had had worse reports and lower assessments on the way through the course than I had" and that it was "an open secret that some of the boys had far worse assessments than I did";
(b)that the respondent, who had invited friends and family to the graduation, was required to explain to them that she would not be graduating, but was herself required to attend and watch all her course mates do so; and
(c)that when the respondent and a male course member sought to be provided with special running shoes, the special shoes were requisitioned and provided to the male member while standard issue shoes were provided to the respondent.
The matters complained of refer to possible discrimination on the basis of gender and humiliating conduct, both of which the Commissioner is empowered by the Act to investigate. Ground 1 is not made out.
Ground 2
"The Tribunal erred in ruling that Mr Desmond Le Fevre's letter of 20 March 1998 to the Sex Discrimination Commissioner can be regarded as part of the complaint lodged with the Sex Discrimination Commissioner by the Respondent on 25 February 1998."
The letter of Mr Le Fevre raised the question whether the proposed posting of the respondent to Devonport rather than to Launceston was discriminatory. This question was not mentioned in the Complaint Lodgment Form, but the letter was delivered to the Commissioner while the complaint was being investigated, but prior to its being accepted. The issue arose after the Complaint Lodgment Form was delivered to the Commissioner, but refers to the same course and the same subject matter of the complaint in the Form. It represents an instance of the "ongoing" discriminatory behaviour of which the respondent was the alleged victim and of which she complained in her initial form. If other matters of complaint are revealed, as the Commissioner exercises his or her powers of investigation on receipt of an initial complaint, it does not follow that the lodgment of a new complaint complying with s34 is a condition precedent to the Commissioner's jurisdiction to investigate these matters further. Indeed, s32, which identifies the persons and organizations who may invoke the Commissioner's jurisdiction by way of complaint, provides in subs(2) that "The Commissioner may investigate any discrimination or prohibited conduct if satisfied that there are reasonable grounds for doing so". I accept the respondent's submission that the Commissioner is empowered to determine the procedures to be followed in an investigation and to do all things necessary and convenient to perform the functions of his or her office (see s7(a) and (d)). Where an allegation of continuing discrimination has been made, the Commissioner is entitled to be informed of and to take into account any ongoing matters referable to the complaint.
Ground 3
"The Tribunal erred in ruling that Mr Desmond Le Fevre's letter of 20 March 1998 to the Sex Discrimination Commissioner could be accepted as a complaint against the Appellant by the Respondent."
The appellant submits that Mr Le Fevre's letter did not comply with s34(1)(b) in that it did not identify the person complained against. The Tribunal ruled:
"The context of the letter written by Mr Le Fevre is the Commissioner's investigation which was current at the time the letter was written. Relevant background which may properly be taken into account is information in the original Complaint Lodgment Form. Read in the context of the investigation and the background of the original complaint an inference can properly be drawn from the letter that the person responsible for the conduct set out in the letter is the respondent identified in the Complaint Lodgment Form with a question raised in the letter as to the liability under the Act of the Police Department and instructing Sergeant."
For substantially the same reasons I have already given in respect of the Complaint Lodgment Form's alleged failure to identify the appellant as the person or organization complained against, I reject the appellant's submission. The letter itself clearly identifies the Police Department as the organization responsible for the conduct and it is not claimed that the Commissioner of Police is not the appropriate respondent for the purposes of a properly instituted enquiry.
Ground 4
"The Tribunal erred in ruling that the Sex Discrimination Commissioner had complied with Section 39 of the Sex Discrimination Act in respect of the fourth matter referred to the Tribunal on 1 December 1999."
The Commissioner, by letter dated 3 April 1998, accepted the complaint. The appellant was notified of the acceptance of the complaint by a letter from the Commissioner dated 8 April 1998. That letter, as well as detailing the sections of the Act which the Commissioner believed to have been breached and providing copies of those sections, also attached a copy of Mr Le Fevre's letter. The appellant was therefore made aware of all aspects of the complaint, including the posting to Devonport when notified of its acceptance. By letter dated 21 April 1998, the appellant replied to the Commissioner and not only addressed the matters referred to in the Complaint Lodgment Form, but also the posting. The appellant was aware that the question of the posting formed part of the complaint accepted and made no objection to its inclusion. Section 39 has been complied with in that:
(a) the appellant was notified of the acceptance of the complaint;
(b)reasons were given for the acceptance of the complaint, namely that the complaint disclosed possible breaches of the Act; and
(c)the Commissioner provided a summary of the complaint in the form of an extract of the respondent's Complaint Lodgment Form and a copy of Mr Le Fevre's letter and the attachments thereto.
Ground 5
"The Tribunal erred in ruling that the Sex Discrimination Commissioner had complied with Section 48(2) and Section 48(3) of the Sex Discrimination Act in respect of the fourth matter referred to the Tribunal on 1 December 1999."
In accordance with s48(1), extensions were agreed with the complainant for the referral of the complaint beyond the period of six months from the date of notification under s39 and the appellant was notified of each extension in accordance with s48(3). The appellant's submission is that the fourth issue (the Devonport posting matter of complaint) was a separate matter of complaint and required separate treatment procedurally. I do not accept this contention. The threatened posting was accepted by the Commissioner as part of the respondent's complaint and the date of notification of the parameters of that complaint was 8 April 1998. All the agreed extensions related to the complaint as notified on that date, including the Devonport posting complaint. There is no substance in this ground.
Ground 6
"The Tribunal erred in ruling that the proposed posting referred to in the fourth matter of complaint referred to the Tribunal on 1 December 1999 was capable of amounting to indirect discrimination within the meaning of the Sex Discrimination Act."
The Tribunal did not make a ruling to the effect complained of. The Chairperson observed that whether or not there had been indirect discrimination was a question going to the merits of the respondent's case and was not a matter going to jurisdiction. This is clearly right, in my view. The submission was that as the posting had not taken place, it could not be said to have had the effect of disadvantaging the respondent. However, the prospect of such a posting could, as a matter of law and of fact, cause some disadvantage to the person concerned, even before it eventuated. It could even be, for example, the catalyst for a resignation in preference to a posting which would be, but was not yet, causative of disadvantage. Counsel for the appellant sought leave to substitute the word "accepting" for the word "ruling" in the first line of the ground of appeal, but I am not prepared to grant leave and in any event, for the reason advanced above, consider there would be no utility in allowing such an amendment as the point has no merit.
Ground 7
"The Tribunal erred in ruling that the fresh allegation contained in the Respondent's letter of 13 May 1998 to the Sex Discrimination Commissioner could be accepted for investigation by the Commissioner as an aspect of a course of conduct referred to in the Complaint Lodgment Form lodged with the Commissioner by the Respondent on 25 February 1998."
The Chairperson made the following ruling which is the subject of challenge by the above ground:
"38It is Mr Miller's submission that the complainant did not make a complaint of matter number 5 to the Sex Discrimination Commission. Further, that the Commissioner has failed to comply with s34, s39 and s48(3) of the Act.
39It is common ground that this matter of complaint was first raised in Ms Reid's letter of the 13th May 1998 to the Sex Discrimination Commission. Mr Miller submits that the letter does not purport to be a formal complaint under s32 of the Act and should not be regarded as a complaint. In the response provided by the Commissioner to the Tribunal it is said that the allegations made in Ms Reid's letter of 13 May 1998 were accepted for investigation as part of Ms Reid's original complaint on the basis that they formed ongoing aspects of it. It is apparent from the Commissioner's position that the matter has been referred to the Tribunal as an aspect of ongoing conduct towards the complainant.
40As to whether or not a matter of complaint can be treated as part of continuing conduct by the respondent or whether it ought to be the subject of a separate complaint will often be a question of fact depending upon the circumstances of the case. Sometimes it will be difficult to discern whether the additional matter complained of is a separate matter or part of a course of conduct. In such cases it will often be a question of degree. It may be noted that if the additional matter should be regarded as a separate matter of complaint and not part of the original complaint then the Tribunal has power to amend the original complaint to include the additional matter.
41In this case I note that the original Complaint Lodgment Form alleges 'ongoing' conduct; ref page 2. The respondent to the additional matter appears to be the same respondent referred to in the original Complaint Lodgment Form. It is at least arguable on the information before me that the additional matter of complaint referred to in the letter from Ms Reid dated 13 May 1998 is part of a course of conduct.
42I will proceed on the basis that the additional matter of complaint referred to in the complainant's letter of 13 May 1998 has been properly referred to the Tribunal as an aspect of a course of conduct referred to in the original Complaint Lodgment Form. If, according to evidence, it is revealed that the additional matter of complaint referred to in the letter of 13 May 1998 is a separate matter and not part of a course of conduct then I will hear from the parties as to amendment of the complaint. A relevant consideration will be the question of prejudice to the Police Commissioner. It is noteworthy that the respondent was promptly advised of the additional allegations contained in the letter of 13 May 1998.
43I understand that the submission regarding non-compliance with s39 and s48(3) hinges on the submission that the letter of 13 May 1998 is a matter of separate complaint. In view of my conclusion about this submission it is not necessary for me to consider this aspect of Mr Miller's submission."
I agree with that ruling. Whether or not a matter can be treated as part of continuing conduct or whether it should be the subject of a separate complaint will often be a question of fact depending upon the circumstances of the case. But there is a further reason for rejecting the contention that the Tribunal lacked jurisdiction to inquire into issue number 5 because of the alleged non-compliance with ss39 and 48(3). I have already adverted to the remedial character of this legislation. I find the suggestion that these sections impose mandatory requirements, non-compliance with which would deprive the Commissioner and ultimately the Tribunal of jurisdiction, completely at variance with the objects of the Act. While it is true the sections use the words "is to", an expression which, like "shall" the courts tend to treat as mandatory, they are provisions which fall into a recognised exception to the general rule. That exception is exemplified by Montreal Street Railway Company v Normandin [1917] AC 170, where the Privy Council said, at 175:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only …"
See also Attorney-General; Ex Rel Franklins Store Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955; ABC Corporation v Redmore Pty Ltd (1988 - 1989) 166 CLR 454; R v Urbanowski [1976] 1 WLR 455; Accident Compensation Commission v Murphy [1988] VR 444. The complainant has no control over the observance by the Commissioner of the requirements of s39 or s48. For a complainant to be denied the remedies under the Act to which he or she was otherwise entitled because the Commissioner failed to observe these requirements with the consequence that jurisdiction was lost would completely frustrate the expressed intentions of Parliament.
Ground 8
"The Appellant was not the Respondent to any complaints lodged with the Sex Discrimination Commission by or on behalf of the Respondent and the Commissioner's and Chairperson's actions in treating the Appellant as the Respondent to the matters of complaint referred to the Tribunal were invalid."
This was not a matter upon which the Chairperson gave any specific ruling. Counsel for the respondent points out in argument that the appellant did not deny that it was the respondent to the complaint, but referred to itself as the respondent in a letter from its legal officer to the Commissioner dated 28 May 1998, in a further letter to the Commissioner dated 13 April 2000 and also in written submissions to the Tribunal dated 19 July 2000. The appellant's position has always been, not that it is not the appropriate respondent to the complaint, but that the complaint does not name a person capable of being a respondent. In any event, to the extent that the Chairperson proceeded on an assumption that the Commissioner was entitled to nominate a respondent to the complaint in the light of the material he or she has, before notifying that person as required by s39, I think the Chairperson was right for the reasons that I have already advanced in respect of the first ground of appeal.
None of the grounds has been made out and the appeal must be dismissed.
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